in corroboration of a witness's testimony, to shew that he affirmed the same thing before on other occasions, and that the witness is still consistent with himself (x).” Still, in 1754, on the trial of Elizabeth Canning for perjury, we find some rather elaborately got up evidence tendered which, although rejected by the bench, seems to shew that the rule against hearsay was not generally understood by the profession (y). Towards the end of the eighteenth century, however, the text writers speak of the rule as established (z); but although recognized as obligatory, it was not extended to all the cases which fall within its principle. Thus so late as 1779, on a trial for assault with intent to ravish a very young child, we find Buller, J. (himself the author of a Treatise on Nisi Prius), adopting the course advised by Sir Matthew Hale nearly a century before, by receiving as evidence the information relative to the transaction which the child, who was not examined as a witness, had given to two other persons. The point however having been reserved, this course was condemned by all the judges; and a definite rule relative to the testimony of children laid down for the future (a). Notwithstanding which, it is said, that so late as 1808 the same objectionable kind of evidence was received on an indictment for a rape on a child five years old; but on a case reserved, the judges, as might have been expected, thought it clearly inadmissible (b). And an approved treatise of the present day informs us, that "so late as the year 1790, the rule against hearsay does not appear to have been settled with regard to depositions taken before magistrates (whether upon criminal charges or upon other occasions), and several of the exceptions to this rule have (x) Gilb. Ev. 150, 4th Ed. (y) 19 Ho. St. Tr. 342, 343. (*) Bull. N. P. 294; 2 Fonb. Eq. 450. (a) R. v. Brasier, 1 Leach, C. L. 199. (b) R. v. Tucker, MS. cited Ph. & Am. Ev. 6; 1 Ph. Ev. 10, 10th Ed. been much narrowed within very modern times (c)." The authors on evidence of the current century all speak of the rule rejecting hearsay evidence as established and notorious (d). the last and § 117. Other parts of the law of evidence are marked Progress of by similar improvement during the last and present the law of eviother parts of century. The enlightened principle that judicial oaths dence during are not to be rejected on account of the witness holding present century. erroneous notions on religion, provided a mode of swear- Oaths. ing is found which he considers binding on his conscience, was fully recognized in the great case of Omychund v. Barker in 1744 (e). In later times also relief has been given to particular classes of persons who object on conscientious motives to the taking oaths in any shape (f). So the incompetency of witnesses on the Incompetency ground of interest was extricated from the chaos of conflicting authority in which it lay involved, and placed on at least an intelligible footing by the case of Bent v. Baker (g) in 1789, and others of that period. In our own times this latter subject has attracted much attention-the doctrine of the incompetency of witnesses has been attacked in toto as inexpedient (h), and the operation of its rules very considerably narrowed by the statutes 3 & 4 Will. IV. c. 42, ss. 26, 27; 6 & 7 Vict. c. 85; 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83. By various recent statutes, also, many species of do- Recent statutes. (c) 1 Ph. Ev. 208, 9th Ed.; and 165, 10th Ed. See Higham v. Ridgway, 10 East, 109, and the cases there referred to; R. v. Eriswell, 3 T. R. 707; R. v. Chadderton, 2 East, 27; R. v. Frystone, Id. 54; R. v. Abergwilly, Id. 63. (d) 2 Ev. Poth. 283, 284; and see any of the modern Treatises on Evidence. (e) 1 Atk. 21; Willes, 538; 1 Wils. 84. (f) Infra, Part 2, ch. 1, sect. 2. (g) 3 T. R. 27. See Ph. & Am. Ev. 74, 75. (h) Benth. Jud. Ev. vol. i. 1-15; vol. v. 1—191, &c., &c.; Taylor, Ev. §§ 946-953. See this subject considered infra, Part 2, ch. 1, sect. 2. of witnesses. Causes of the slow develop cuments have been invested with the character of public documents, and made evidence against all persons of the facts which they record or attest (i): the proof of public documents in general has been rendered more simple and less expensive (k): proof of certain things which may fairly be deemed notorious dispensed with (1); liberal powers of amending variances at trials vested in tribunals (m), and more effective means afforded to litigants of getting at evidence in the custody or under the control of the opposite party (n). While these alterations must on the whole be viewed as improvements, it may be a question whether they have not, in some cases, been carried too far. The principle which attaches so great faith to public documents, for instance, rests in a great degree on the rule,-" Omnia præsumuntur ritè esse acta,"-a maxim unquestionably just when restrained within its due limits; but there is another equally valuable which must not be lost sight of,- "Res inter alios acta alteri nocere non debet." In one instance—that relating to entries in the logbooks of merchant ships—the legislature found it necessary to retrace its steps in this respect (o): and at least one reported case illustrates the danger of fabrication for interested purposes in documents of a quasi public nature (p). § 118. This slow development of the law of evidence, ment of the law compared with the other branches of our jurisprudence, seems a natural consequence of the general principle, of evidence. (i) 14 & 15 Vict. c. 99; 8 & (1) 8 & 9 Vict. c. 113; 14 & (m) The statutes on this sub ject will be found collected, infra, Part 3, book 1, chap. 3. (n) 14 & 15 Vict. c. 99, s. 6. (0) See 13 & 14 Vict. c. 93, s. 85-93; and the amending act, 14 & 15 Vict. c. 96, s. 27. (p) Waterford Railway Company v. Pidcock, 8 Exch. 279. that in every nation the substantive rules of law arrive at maturity before the adjective. The reason is obvious. Rules defining the rights of persons and property, cre- Primary causes. ating offences and assigning their punishment, are almost coeval with the existence of civil society; while the procedure, or mode of enforcing rights and carrying the sanctions of penal law into effect, are usually left for a long time, and to a certain extent ever must be left, to the discretion of the persons entrusted with the administration of justice. But our modern system of proofs Secondary probably owes its establishment to the following second- causes. ary causes-1°. The independence of the judges on 1. Independthe crown, begun by the 12 & 13 Will. III. c. 2, s. 3, ence of the judges. and completed by the 1 Geo. III. c. 23, which naturally had a considerable effect in preventing artificial distinctions being made between the proofs in state prosecutions and those in other cases. 2o. The allowing persons ac- 2o. The allowcused of treason or felony the right of being defended ing counsel in by counsel (q); the necessary consequence of which was that objections to the admissibility of evidence were much more frequently taken, the attention of the judges was more directed to the subject of evidence, their judgments were better considered, and their decisions better remembered. 3°, and principally, The gradual change 3o. Change in effected in the constitution of the common law tribunal the functions of the jury. for the trial of matters of fact. As Serjeant Stephen observes, "it is a matter clear beyond dispute (but one that has perhaps been too little noticed in works that treat of the origin of our laws) that the jury anciently consisted of persons who were witnesses to the facts, or at least in some measure personally cognizant of them; and who, (9) In treason, by 7 & 8 Will. III. c. 3, s. 1; and 20 Geo. II. c. 30. Although persons accused of felony were not allowed to make their full defence by counsel until the 6 & 7 Will. IV. c. 114, yet for a long time before that statute their counsel were al- criminal cases. consequently, in their verdict gave, not (as now) the conclusion of their judgment, upon facts proved before them in the cause-but their testimony as to facts which they had antecedently known (r)." This circumstance, which is a key to so many of the common law rules of pleading, will throw considerable light on our system of judicial evidence. That the jury were witnesses of a particular kind, at least as late as the reign of Edw. I. and that they had ceased to be such in that of Charles II., perhaps much sooner, is indisputable. But in the meantime the system was in a sort of transition state (s); and it was not until the final determination of that state that the rules of proof, which so much depend on the functions of the component parts of the judicial tribunal being clearly defined, could assume a permanent and consistent form. Other causes may have contributed, and indeed the above are only offered in the way of speculation. (r) Steph. Plead. 145, 480, & Append. note 33, 5th Ed. To his authorities, which are indeed conclusive enough on this matter, we add the following. It was agreed by the court in Rolfe v. Hampden, T. 34 Hen. VIII. Dyer, 53 b, pl. 11, that the plaintiff in a writ of attaint for false verdict could not be allowed to give more evidence than he had produced before the petit jury, but that the defendant, on the other hand, might give more in affirmance of it. The functions of jurors and the distinction between them and other witnesses is strikingly pointed out in 23 Ass. pl. 11. It was proposed to challenge a witness to a deed in the same way as a juror. "Et non allocatur,' for the witnesses are not challengeable, because the verdict shall not be received from them, but from those of the assize, and the witnesses were sworn simply to say the truth, without saying to their knowledge (a lour estient), for they ought to testify nothing but what they see and hear." The same was held in the 12 Ass. pl. 11 & 41, in the former of which we are told, "The assize (the jury) came and were charged to say the truth of their knowledge (a lour science), and the witnesses without their knowledge (sans lour scient), to say the truth and loyally inform the inquest." See also 11 Ass. pl. 19. (s) The authorities in the last note shew how this stood in the time of our early Plantagenet monarchs; the celebrated judgment of C.J. Vaughan in Bushell's case, Vaugh. 135, fixes the prac |