begin (c), that leading interrogatories ought not to be put, &c. (d).

§ 113. But although the germs of our law of evidence In former times are thus traceable in the proceedings of our ancestors, evidence not the principles of they do not appear to have reduced its principles into a embodied in binding rules. system, or invested them with the obligatory force essential to the steady and impartial administration of justice. Except in the case of præsumptiones juris, which, being part of the law itself, it would have been manifestly improper to disregard, and a few other instances, the principles of evidence were looked on as something merely directory, which judges and jurymen might follow or not at their discretion. The best illustration of this will be Illustration from secondfound in the practice relative to hearsay or second-hand evidence. hand evidence. We have seen that our ancient lawyers were perfectly aware of its weakness, but they did not think themselves called on to reject it absolutely. Thus in Rolfe v. Hampden, T. 34 Hen. VIII. (e), where in order to support a will of land, contained in an ancient paper writing (before the Statute of Frauds), the testimony of three witnesses was received, one of whom spoke of his own knowledge, the rest on the report of others; and L. C. J. Dyer, by whom the case is reported, saw nothing extraordinary in this, but observes, "the jury paid little regard to the aforesaid evidence." And at a later period the courts seem to have thought that, although hearsay was not evidence in itself, it might be used to introduce, explain, or corroborate more regular proof (f).

§ 114. Instances are, however, to be found in the State Want of bindTrials, previous to the revolution of 1688, of decisions ing rules one

(c) Litt. R. 36; 3 Car. I.; Trials per Pais, 367; Heidon v. Ibgrave, 3 Leon. 162, pl. 211; Gouldsb. 23, pl. 2.

(d) 4 Inst. 279.

(e) Dyer, 53 b, pl. 11.

(f) 2 Hawk. P. C. c. 46, s. 14, Ed. 1716; Bac. Abr. Evid. K., Ed 1736; Trials per Pais, 389, 390; 1 Mod. 283.

L

cause of the abuses in the old State Trials.

going much beyond this, and the key to which lies in a circumstance commonly overlooked. So long as the judges believed that it was discretionary with them to enforce or disregard the received principles of proof, it is natural to suppose that with the high prerogative notions of those times, and dependant as they were on the crown, they would exercise that discretion in favour of the crown, and carefully avoid laying down any general rules which might fetter the executive in proceeding against state criminals. Accordingly we find that in the sixteenth, and early part of the seventeenth centuries, it was an open and avowed principle that the rules of evidence and practice on prosecutions for high treason, and perhaps for felony also, were different from those followed in ordinary cases (g). Thus, although by the established usage of the common law from the earliest times, witnesses were sworn, examined, and cross-examined in open court, the judges refused to compel their personal appearance in cases of treason (h), holding that it would be opening a gap for the destruction of the king (i), &c. The consequence of establishing this distinction was, that on charges of that nature not only was the loosest and most dangerous evidence received, but the entire proceedings were conducted in a way which set at defiance every principle of fairness and justice. "Throughout the state trials, before the time of the Commonwealth," observes Mr. Phillipps (k), "the worst species of hearsay was constantly received; such as the examinations of persons who might have

(g) See 2 Hawk. P. C. c. 46, s. 9, and the authorities in the following notes.

(h) Staundf. P. C. 164.

(i) Sir Walter Raleigh's case, 2 Ho. St. Tr. 19. Hallam, in his Constitutional History of England, vol. i. pp. 526, 527, speak

ing of the trial of the Earl of Strafford, says, that “in that age the rules of evidence, so scrupulously defined since, were either very imperfectly recognized or continually transgressed."

(k) 1 Ph. Ev. 208, 9th Ed.; 166, 10th Ed.

been produced as witnesses, or who had been convicted. of capital offences, or who had signed confessions in the presence only of the officers of government and under the torture of the rack." Thus, in the celebrated case of Sir Nicholas Throckmorton (1), the principal evidence was the deposition of a person already convicted of treason, and whose execution had been respited from time to time in order to induce him to accuse the prisoner (m). And among many flagrant misinterpretations of the law in favour of the crown and against the prisoner of which that trial is full, the court unblushingly declared that the words in the great Statute of Treason, 25 Edw. III. c. 2, st. 5, that persons accused of treason should "thereof be proveably attainted of open deed, by people of their condition," meant, not that they should be attainted by verdict of a jury, but by the evidence of persons already attainted, who declare the accused participators in their treason, and are thus persons of their condition (n). After the Restoration matters seem to have mended; the witnesses appeared in person, but the practice of admitting proof at second-hand continued,-the judges acknowledging that it was not evidence, and promising to tell the jury so (o). Thus, in Langhorn's case, 31 Car. II. (p), Atkins, J., interposed while a witness was giving his evidence, "That is no evidence against the prisoner, because it is by hearsay;" and Scroggs, C. J., adds, "It is right, and the jury ought to take notice, that what another man said is no evidence against the prisoner, for nothing will be evidence against him but what is of his own knowledge." Notwithstanding this

() 1 Ho. St. Tr. 869.

(m) 1 Ph. Ev. 208, 9th Ed.; 166, 10th Ed.

(n) 1 Ho. St. Tr. 889.

(o) See Langhorn's case, 7 Ho. St. Tr. 441; Lord William Rus

sell's case, 9 Id. 608; Algernon Sidney's case, Id. 848; Charnock's case, 12 Id. 1414 and 1454.

(p) 7 Ho. St. Tr. 441.

Origin of the modern law of evidence.

tic feature

rules of evi

language, to quote again from the same author (q), " On the trials for the Popish Plot, the evidence consisted principally of a narrative of the transactions of the supposed conspirators in various countries, collected during a long period of time, from a multitude of letters, the contents of which were given from recollection; the witnesses not having taken a note of any part of the letters at the time of reading, not having read them for a great number of years, nor having been required in reading to notice their contents, and not producing one of the letters, or a copy, or even an extract.”

§ 115. The system known in practice by the title of the "Law of Evidence" began to form about the middle of the seventeenth century,-at least this is sufficiently

Its characteris accurate for a general view. The characteristic feature which distinguishes it, both from our own ancient sysdence are rules tem and those of most other nations, is, that its rules of of law. evidence, both primary and secondary, are in general rules of law; and as such not to be enforced or relaxed at the discretion of judges, but as binding on them, juries, litigants, and witnesses as the rest of the common and statute law of the land; and that it is only in the forensic procedure which regulates the manner and order of offering, accepting, and rejecting proofs, that a discretionary power, and even that a limited one, is vested in the bench. A judge, consequently, has now no more right to receive prohibited evidence because he thinks that by so doing justice will be advanced in the particular case, than he has to suspend the operation of

(q) 1 Ph. Ev. 209, 9th Ed.; 166, 10th Ed. From the above observations it follows that too much reliance must not be placed on the valuable work called "The State Trials," as presenting a correct picture of the ordi

nary practice of English tribunals before the Revolution. It should not be forgotten that most of the cases there reported were prosecutions for high treason, and took place in times of great excitement.

a Statute of Mortmain, or refuse to permit an heir-atlaw to recover in ejectment because he considers him sufficiently provided for without the land in dispute.

It must not, however, be supposed that this great prin- Gradual deveciple became established all at once; and indeed the lopment of this principle. gradual development of our system of judicial evidence, from the above epoch to the present day, may be studied alike with advantage and pleasure. To point out the various improvements and alterations that have from time to time been effected in it, by the courts and the legislature, would far exceed the limits of a mere sketch of its progress. It will therefore be sufficient to glance at a few particulars; and we accordingly proceed in the first place with the history during that period of the rule rejecting hearsay evidence.

dence.

§ 116. We have already seen that in the reign of History of the rule rejecting Charles II. the infirmity of hearsay evidence was gene- hearsay evirally admitted; yet where a rape was committed on a child of tender years it was the practice to receive as evidence the child's narrative of the transaction to her mother or other relations (r). And at the beginning of the eighteenth century, Serjeant Hawkins only ventures to lay down the rule thus (s), " it seems agreed that what a stranger has been heard to say is in strictness no manner of evidence either for or against a prisoner ;" while similar language is used in Bacon's Abridgment (t). Lord Chief Baron Gilbert, also, in his Treatise on the Law of Evidence, composed about the same time, being it is believed the earliest on the subject, lays down that "a mere hearsay is no evidence (u);" "but although not allowed as direct evidence, yet it may be

(r) 1 Hale, P. C. 634, 635. (s) 2 Hawk. P. C. c. 46, s. 14, Ed. 1716.

(t) Bac. Abr. Evid. (K), Ed. 1736.

(u) Gilb. Ev. 149, 4th Ed.