statement of B., C. has got the truth (g). It is perhaps superfluous to add, that the danger increases the greater the number of media through which evidence has come; for with each additional witness, or other medium, two fresh chances of error are introduced (h). casual evi § 31. We shall just notice one other division, the 4o. Pre-apvalue of which has been too much overlooked. Evi- pointed and dence and proofs are pre-appointed, or pre-constituted (i) dence. and casual. Pre-appointed evidence is defined by Bentham, in one place (k), to be where "the creation or preservation of an article of evidence has been, either to public or private minds, an object of solicitude, and thence a final cause of arrangement taken in consequence, (viz. in the view of its serving to give effect to a right, or enforce an obligation, on some future contingent occasion); the evidence so created and preserved comes under the notion of pre-appointed evidence." In another place (1), he defines it to be, written evidence, created with the design of being employed on the occasion and for the purpose of some suit, or cause, not individually determined. Under this head come public documents; such as records, registers, &c. : together with deeds, wills, contracts, and other instruments for the facilitating of proof on future occasions; which are drawn up by individuals either in compliance with the positive requisition of law, or with a view to the convenience of themselves or others. But we do not see why this kind of evidence must necessarily be in a written form (m). When a party about to do a deliberate act calls particular persons to witness, in order that they may be able to bear testimony (g) See Lacroix, Calcul des Probabilités, § 142. (h) For the proof of historical facts by derivative evidence, see the next section. (i) Pre-appointed evidence; 1 Benth. Jud. Ev. 56; 2 Id. 435. Preuves Préconstituées; Bon- (k) 2 Benth. Jud. Ev. 435. (m) See Bonnier, Traité des to it on future occasions, their evidence is pre-appointed or pre-constituted, as much as a deed which professes to be made in witness of the matters contained in it (n). Any evidence not coming under the head of " pre-appointed evidence" may be denominated "casual evidence." (n) There are several instances in the Anglo-Saxon laws, where sales were required to be made in the presence of particular classes of persons, or in particular places; see 1 Greenl. Ev. § 262, note (1), 4th Ed. By the Statute of Frauds and Perjuries, 29 Car. II. c. 3, it was enacted, that no nuncupative will should be good, unless it were "proved that the testator at the time of pronouncing the same did bid the persons present, or some of them, bear witness that such was his will, or to that effect." See now 7 Will. IV. & 1 Vict. c. 26, and 15 & 16 Vict. c. 24. The direction given in Matth. xviii. 15, 16, seems a clear case of unwritten pre-appointed evidence, "If thy brother shall trespass against thee, &c. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established." See also Genesis, xxiii. 17, 18. SECTION II. JUDICIAL EVIDENCE. dence. § 32. HAVING Considered the subject of evidence apart Judicial evifrom jurisprudence and judicature, for the sake of distinction termed "natural" or "moral evidence;" we proceed to that of JUDICIAL EVIDENCE, which is a species of the former, with the view of showing its essential difference and characteristics. § 33. "Judicial evidence" may be defined the evidence Definition. received by courts of justice in proof or disproof of facts, the existence of which comes in question before them. By facts here must be understood the res gestæ of some suit, or other matter, to which when ascertained the law is to be applied; for although in logical accuracy the existence or non-existence of a law is a question of fact, it is rarely spoken of as such, either by jurists or practitioners (a). By "law" here we mean the general law of each country, which its tribunals are supposed to know without proof; for they are not bound, at least in general, to take judicial cognizance of local customs (b) or the laws of foreign nations (c)—the existence of such must be proved as facts. § 34. Judicial evidence, as already observed, is a spe- Its rules either cies of the genus "evidence;" and is for the most part investitive. exclusionary or (a) Voet. ad Pand. lib. 22, tit. 3, n. 8; Huberus, Præl. Jur. Civ. lib. 22, tit. 3, n. 7; Vinnius, Jurispr. Contr. lib. 4, cap. 25; Bonnier, Traité des Preuves, § 21. See also Co. Litt. 283 a; 1 Stark. Ev. 9, 3rd Ed., and 12, 4th Ed. (b) Heinec. ad Pand. par. 4, § 119; Id. par. 1, § 103; Co. Litt. 175, b. See Tayl. Ev. § 5. (c) Story, Confl. Laws, § 637, et seq. 4th Ed.; Ph. and Am. Ev. 624. Necessity and use of. nothing more than natural evidence restrained or modified by rules of positive law (d). Some of these rules are of an exclusionary nature, and reject as legal evidence facts in themselves entitled to consideration. Others again are what may be called investitive, i. e. investing natural evidence with an artificial weight; and even in some instances, attributing the property of evidence to that which abstractedly speaking has no probative force at all. § 35. And here the question presents itself, whence the necessity, whence the utility of such rules? Doubtful and disputed facts, it may be said, forming the subjectmatter about which natural and judicial evidence are alike conversant, and truth being ever one and the same, must not any rules shackling the minds of tribunals in its investigation be a useless, if not mischievous, adjunct to laws? On examination however it will appear that a system of judicial proof is not only highly salutary and useful, but that an absolute necessity for it arises out of the very nature of municipal law and the functions of tribunals, and that some such system is to be found among the legal institutions of every country, we think we may say, without a single exception. (d)" Probatio est actus judicialis, quo de facto dubio fides fit judici." Heinec. ad Pand. pars 4, $115. "Probatio est intentionis nostræ legitima fides, quam judici facit aut actor, aut reus." Matth. de Prob. c. 1, n. 1; Voet. ad Pand. lib. 22, tit. 3, n. 1. "Probatio est ostensio rei dubiæ per legitimos modos judici facienda, in causis apud ipsum judicem controversis. .... Nec in definitione omisi 'per legitimos modos,' hac de causâ, quia multi sunt modi, ex quibus fit probatio, ut per testes, per in strumenta, per evidentiam facti, per justam præsumptionem, per conjecturam, et per multos alios modos; quos omnes modos per jam allata verba comprehendere volui: ea enim ratione dixi legitimos ut ostenderem hujusmodi probationes jurta legis normam debere fieri in hujusmodi probationibus observatam, hoc est secundum formam libelli secundum quam pronuntiandum est ex allegatis:" Mascardus de Prob. Quæst. 2, n. 17, 21, 22, 23. § 36. The evidence adduced in courts of justice, being as it were a handmaid to jurisprudence, might reasonably be expected to partake of the nature and follow the law of the science to which it is ancillary. And this impression is confirmed, not removed, by a closer examination of the subject; for it will be found that the same reasons which give birth to municipal law itself, show the necessity for some authoritative regulation of the proofs resorted to in its administration. But in order to set this in a clear light, we must point attention to a distinction. often overlooked, and the losing sight of which has been the source of much mistake and confusion. According to Expletive and writers on natural law, justice may in general be divided attributive jusinto expletive and attributive (e). By the former-sometimes also denominated rigorous justice, perfect justice, or justice properly so called-is meant that whereby we discharge to another duties to which he is entitled by virtue of a perfect and rigorous obligation, the performance of which, if withheld, he has a right to exact by force. The latter consists in the discharge of duties arising out of an imperfect or non-rigorous obligation, the performance of which cannot be so exacted, but is left to each person's honour and conscience. These latter duties are comprehended under the appellations of humanity, charity, benevolence, &c. (f). Under a sys (e) Burlamaqui, Principes du Droit Naturel, part. 1, ch. 11, § 11; Grotius, De Jur. Bell. ac Pac. lib. 1, cap. 1, § viii. (ƒ) An excellent example of the difference between these two kinds of justice is afforded by the well known anecdote of Cyrus, recorded by Xenophon, and quoted by Grotius, in loc. cit. A big boy having a coat that was too small for him, and a little boy one that was too large for him, the big boy by force and against the will |