nistrator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized" (v). It likewise enacts (x), that "no contract for the sale of any goods, wares or merchandizes, for the price of 107. sterling, or upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." In many cases also certain forms are superadded to writing. Thus, it is essential to the validity of a deed that it be sealed and delivered (y). And by the 7 Will. IV. & 1 Vict. c. 26, s. 9 (explained by 15 & 16 Vict. c. 24), a will must be in writing, and executed by being signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and subscribe the will in the presence of the testator, &c.

(v) Sect. 4.

(1) Sect. 16 (marked 17 in the ordinary copies).

(y) 2 Blackst. Comm. ch. 20; Finch, Com. Laws, 24 a.

Forms super

added to writ



Consequence of non-ob

scribed forms.

It must not be supposed that this is peculiar to our law. The Jews, the Romans, the Anglo-Saxons, and most other nations, have had their preappointed evidence; -requiring certain acts to be done by writing, or in some particular way. See a variety of instances collected in Greenleaf's Law of Evidence, vol. i. § 262, note (1), 4th edit.

§ 61. As a general rule, when the law prescribes servance of pre- forms for preappointed evidence the non-compliance with them is fatal to the transaction, and the whole becomes a nullity. "Non observatâ formâ infertur adnullatio actûs(z)." "Forma legalis, forma essentialis (a)." "Solemnitates legis sunt observandæ (b)." Bentham recommends that this should be reversed, and that pointed suspicion, not nullification, should be the result (c). He admits, however, that nullification is just in certain cases (d). On the other hand, it is impossible to deny that the principle may be, and often has been, extended beyond the limits alike of usefulness and propriety, and the truth and good sense of the entire matter seem contained in the following observations of Sir W. D. Evans (e). "The interest of society is greatly promoted, by establishing authentic criteria of judicial certainty, so far as this object can be effectuated without materially interfering with the claims of general convenience. Where the acts which may become the subject of examination will admit of deliberate preparation, and the purposes of them evince the propriety of a formal memorial of their occurrence, more especially when they are from their nature subject to error and misrepresentation, it is reasonable to expect that those who are interested in their

(2) 5 Co. iv. a; 12 Co. 7. The same holds in the French law. See Bonnier, Traité des Preuves, § 334; Domat, part. 1, liv. 3, tit. 6, sect. 2, § vi.

(a) 10 Co. 100 a.

(b) Jenk. Cent. 3, Cas. 45. (c) 2 Benth. Jud. Ev. 467, 487, 518.

(d) Id. 470.

(e) 2 Ev. Poth. 142.

preservation should provide for it in a manner previously regulated and established, or that, in case of neglect, their particular interest should be deemed subordinate to the great puposes of general certainty. But it is also certain that this system of precaution may be carried too far, by the exaction of formalities, cumbersome and inconvenient to the general intercourse of civil transactions; the special application of these principles must be chiefly governed by municipal regulations: but as a general observation, it is evident that the great excellence of any particular system must consist in requiring as much certainty and regularity as is consistent with general convenience, and in admitting as much latitude to private convenience as is consistent with general certainty and regularity. It may be added, that for these purposes every regulation should be attended with the most indisputable perspicuity; and that the established forms should be cautiously preserved from any intricacy or strictness that may tend to perplex and embarrass the subjects which they were designed to elucidate, and to endanger and destroy the substance which they were instituted to defend."

§ 62. Another plan, resorted to by the laws of most 4. Rejection of the testimony of nations, for guarding against misdecision consists in the suspected perabsolute repudiation as witnesses of persons whose tes- sons. timony, either from interest in the matter in dispute or any other visible cause, seems likely to prove untrustworthy. This is the recusatio testium of the civilians, and in our law is called "The Incompetency of Witnesses."

Its policy however has been seriously doubted, even Policy of this. fiercely attacked, in modern times, and much said and written on both sides of the question (f). Perhaps the true view of this matter is that the principle of recusation

(ƒ) See Benth. Jud. Ev. vol. i. pp. 3, 151, 152; vol. ii. pp. 541, 542, 543; vol. v. pp. 34-165;

946-953; Ph. &

Tayl. Ev.
Am. Ev. 43-45; Bonnier, Traité
des Preuves, § 189, &c.

or incompetency should, at least in general, be confined to preappointed evidence. Although Bentham confounds them in a general denunciation (g), there is a great difference between the rejection of evidence and the rejection of witnesses. Evidence may fairly be rejected when so remote that to allow tribunals to act on it would invest them with dangerous or unconstitutional power; or, because, being derivative instead of original, its very production carries the impress of fraudulent suppression of better; or, where its disclosure might endanger the public safety. But the testimony of casual witnesses to a fact, i. e. persons who have incidentally witnessed a fact, and this is often an act unforeseen except by the doer, who is deeply interested in its concealment, comes under none of these heads. They are the original depositories of the evidence; what they have been heard to say out of court would be open to the same objections as their testimony, aggravated by the disadvantage of coming obstetricante manu; and in many cases the excluding their testimony would be to exclude all attainable evidence on the question in dispute, and offer by impunity a premium to dishonesty, fraud, and crime. If it be said that owing to unsoundness of mind, deficiency of religion, antecedent misconduct, or personal interest in the matter in question, their evidence is likely to prove unsafe; the answer is, that any line drawn on this subject must necessarily be in the highest degree arbitrary. It is impossible to enumerate à priori the causes which may distort or bias the minds of men to pervert or misstate the truth, far more to estimate their weight in each individual case or with each particular person. But it is very different with preappointed evidence, where parties have power to select their witnesses, and thus make the original depositories of the evidence to their acts. To such the law may fairly say, "You shall for this purpose select persons who from their station, occupation, or (g) See 1 Benth. Jud. Ev. 1-3, and passim.

habits, are likely to be of more than ordinary intelli-
gence, knowledge, or trustworthiness: if you do not,
you must take the consequences."
All this seems a

natural and just development of the great principle, in
the English law a fundamental one, that requires the
best evidence to be given, and is further recommended
by being rarely productive of injury or inconvenience (h).

abuses of it.

§ 63. But whatever the real value of this principle, its Enormous abuses have been enormous. In the civil law, the list of persons liable to be rejected as incompetent to bear testimony was so large that, if the rules of exclusion had not been qualified or evaded, it is difficult to see how, even with the interrogation of parties and the perilous aid of the decisory and suppletory oaths, justice could have been administered at all (i). And these very qualifications and evasions gave rise to a still greater evil, which shall be noticed presently (k). In some instances entire classes were rejected, not from any distrust in their veracity, but as a punishment for offences, or with the view of affixing astigma for religious or political opinions. The strongest illustration of this is to be found in the celebrated constitution of the Greek emperor: by which Pagans, Manichæans, and members of some other sects, were disqualified from giving evidence under any circumstances; while heretics and Jews were only allowed to do so in causes in which heretics or Jews were parties, and, except in some peculiar cases from necessity, could not bear testimony against orthodox Christians (1).

(h) See on this subject, Part 1, ch. 1, and Part 3, book 2.

(i) See Dig lib. 22, tit. 5; Cod. lib. 4, tit. 20; Huberus, Præl. Jur. Civ. lib. 22, tit. 5; Heinec. ad Pand. par. 4, §§ 136-140. Bonnier, in his Traité des Preuves,

185-197, considers that the positive rejection of witnesses was

Similar principles pre

rare in the ancient Roman law,
and that the complicated system
established in Europe was chiefly
the work of the middle age civi-

(k) See infra, § 74.

(1) Cod. lib. 1, tit. 5, 1. 21. We subjoin this constitution entire. 'Quoniam multi judices in

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