the customs and habits of society, and the standard of truth among the population. In this it only shares the fate of laws in general: of which it has been truly said, "Leges naturæ perfectissimæ sunt et immutabiles: Leges humanæ nascuntur, vivunt, et moriuntur (ƒ).”

(f) Calvin's case, 7 Co. 25, a.



§ 76. The judicial evidence of any system of juris- Object of the prudence may be defined, that branch of its adjective law which ascertains the nature, determines the admissibility, controls or modifies the effect of the evidence adduced before its tribunals; and regulates their practice relative to the offering, opposing, and receiving it. Having therefore, in the Introduction, treated of evidence in general, and of judicial evidence as distinguished from it, we proceed to the more immediate object of the present work-the system of judicial evidence established by the common law of England, for the use of its ordinary and regular tribunals, on the trial of facts in question before them—known in practice by the title of the "Law of Evidence." It is necessary to be thus precise, for several other kinds of evidence are observable in the jurisprudence of England. Our courts of equity, ecclesiastical courts, inquisitorial and summary tribunals, proceed on systems of their own, as likewise do the judges of the courts of common law when inquiring into facts brought before them on motion, &c. By sundry statutes, also, peculiar modes of proof are either prescribed or permitted in certain proceedings.

Division of the work.

$77. "The Law of Evidence" will be best understood by treating of it under the four following heads: and the present work is divided accordingly.

1. The English Law of Evidence in general.

2. An Examination of the "Instruments of Evi


3. An Exposition of the Rules established to regulate the admissibility and effect of Evidence.

4. The Forensic Practice of Common Law Courts with respect to Evidence. To this will be added some elementary Rules for conducting the examination and cross-examination of Witnesses.



§ 78. THIS Part consists of two Chapters. In the first Division. it is proposed to take a general view of the English law

of evidence; the second will be devoted to the history of its rise and progress, with some observations on its actual state and future prospects.



§ 79. The necessity for judicial evidence, as distin- Grounds of judicial evi guished from natural or moral evidence, has been shewn, dence in in the Introduction to this work, to arise out of the general. nature of municipal law and the functions of judicial tribunals. The limitations which can properly be imposed by municipal law on tribunals investigating facts were there traced to the following principles. First, The maxim "Optima est lex quæ minimum relinquit arbitrio judicis ;"-that the power of tribunals would be absolute if bounds were not set to their discretion in declaring facts proved or disproved. Secondly, The necessity for speedy action in tribunals; which renders it part of the duty of the legislator to supply rules for the disposal of all matters which come before them, however difficult or


features of the

even impossible it may be to get at the truth. Thirdly,
The evils that would arise from considering only the
direct, and disregarding the collateral, consequences of
decisions and, Lastly, the difference between the in-
vestigation of historical truth and of the facts which
come in question in courts of justice; the characteristic
dangers to which the latter is exposed requiring that
characteristic securities be framed to meet them.
It was
further shewn, that while these principles may be, and
frequently have been, overstepped and pushed beyond
their legitimate limits, the chief abuses to be guarded
against by the legislator in dealing with judicial evidence
are twofold. First, The creation of a technical and arti-
ficial system of belief, dependant on the presence of
evidence in some particular quantity, without regard to
its weight and credibility; and, Secondly, The establish-
ment of rules too stringent and technical to be always
enforced, which a dishonest tribunal would consequently
be enabled without danger to itself to insist on or relax,
according to its interest, pleasure or caprice.

§ 80. The characteristic features of the English sysEnglish system. tem of judicial evidence, like those of every other system, are essentially connected with the constitution of the tribunal by which it is administered; and may be stated as consisting of three great principles. First, "The admissibility of evidence" is matter of law, but the weight or value of evidence is matter of fact. Secondly, Matters of law; including the admissibility of evidence; are proper to be determined by a fixed, matters of fact by a casual, tribunal. Thirdly, In determining the admissibility of evidence, the production of the best evidence should be exacted. We propose to consider them in their order; and will afterwards notice two other features of our system, less characteristic indeed, but exercising a most powerful influence in extracting truth and securing rectitude of decision: First, The mode in which

« ElőzőTovább »