the evidence of witnesses is collected and received by our tribunals; and, Secondly, the publicity of our judicial proceedings.


§ 81. The first of the three may be despatched in a 1. Distinction few words; as the least reflexion will shew how absurd between the admissibility and it would be in any legislator to attempt to lay down weight of evirules for estimating the credit due to witnesses, or the probability of every fact which may present itself in the innumerable combinations of nature and human action (a). The reliance to be placed on the statements of witnesses, and the inferences to be drawn from facts proved, must therefore be left for the most part to the sagacity of tribunals. But even here, for reasons already explained, some limits must be imposed; and the same causes which render artificial rules of evidence essential to the administration of justice shew that those rules ought, as far as possible, to partake of the nature of

(a) The following passage from the Digest is commonly cited in proof and illustration. of this:-" D. Hadrianus Vivio Varo Legato provinciæ Cilicia rescripsit, eum, qui judicat, magis posse scire, quanta fides habenda sit testibus. Verbæ epistolæ hæc sunt: Tu magis scire potes, quanta fides habenda sit testibus: qui, et cujus dignitatis, et cujus æstimationis sint: et qui simpliciter visi sint dicere, utrum unum eundemque meditatum sermonem attulerint; an ad ea, quæ interrogaveras, ex tempore verisimilia responderint.' Ejusdem quoque Principis extat rescriptum ad Valerium Verum de excutienda fide testium, in hæc verba: Quæ argumenta ad quem modum pro

bandæ cuique rei sufficiant, nullo
certo modo satis definiri potest:
sicut non semper, ita sæpe sine
publicis monumentis cujusque rei
veritas deprehenditur: alias nu-
merus testium, alias dignitas et
auctoritas: alias veluti consentiens
fama confirmat rei, de qua quæ-
ritur, fidem. Hoc ergo solum
tibi rescribere possum summatim,
non utique ad unam probationis
speciem cognitionem statim alli-
gari debere: sed ex sententia
animi tui te æstimare oportere,
quid aut credas, aut parum pro-
batum tibi opinaris.' Idem Di-
vus Hadrianus Junio Rufino
Proconsuli Macedoniæ rescripsit,
'testibus se, non testimoniis cre-
diturum.'" Dig. lib. 22, tit. 5,
1. 3, §§ 1, 2, 3.

matter of fact.

The one matter other rules of municipal law (b). And however constiof law, the other tuted the tribunal, but especially when it is of the mixed form that will be described presently, the true line seems to be that the rules of law on this subject ought in general to be confined to the admissibility of proof, leaving its weight to the appreciation of the tribunal.

2. Common

law tribunal for deciding issues of fact.

§ 82. The ordinary common law tribunal for deciding issues of fact (c), consists of a court composed of one or more judges, learned in and armed with the authority of the law; assisted by a jury of twelve men, unlearned in the law, taken indiscriminately from among the people of the county where the venue is laid, and possessing property to a defined amount. No "recusatio judicis" is allowed so far as the court is concerned; but jurors are ́ required to be "omni exceptione majores," and may be challenged by the litigant parties, for want of the requisite qualifications, as well as for certain causes likely to exercise an undue influence on their decision; in addition to which, persons accused of treason or felony are allowed to challenge peremptorily, without cause, the former as many as thirty-five, the latter twenty of the panel. The court is charged with the general conduct of the proceedings-it determines all questions of law and practice, pronounces on the admission or rejection of evidence, and when the case is ripe for adjudication, sums it up to the jury-explaining the questions in dispute, with the law as bearing on them, pointing out on whom the burden of proof lies, and recapitulating the evidence, with such comments and observations as may seem fitting. And as the proceedings of tribunals ought to be based on legal evidence, and legal questions are the proper province of the court, it follows that it is for

(b) See Introd. sect. 2.

(c) In some few instances the trial is by the court, without a

jury e. g. trial by the record, inspection, witnesses, &c. See 3 Blackst. Com. 330.

the court to determine whether, taking all the evidence given to be true the jury could legally act on it, and if not, then to withdraw the case from their consideration (d). On the other hand the decision of the facts in issue is the exclusive province of the jury; who are therefore to hear the evidence and comments made on it, to ask such questions of the witnesses as they think needful, to decide on the credit due to the testimony of witnesses, and draw all requisite inferences of fact from the evidence. Errors of law committed by the court are corrected by application to a superior tribunal; and if a jury misconduct themselves to the defeat of justice, as, for instance, if they determine by lot what verdict to give, or before giving it hear other evidence besides what was given in open court, their verdict will be void. The court above will also, in civil cases at least, award a new trial if the jury deliver a verdict clearly founded on a misunderstanding of the law (e), or find what is called a perverse verdict, i. e. refuse to listen to the law as correctly laid down to them by the judge (ƒ). So if they find a verdict against the evidence, i. e. a verdict not merely erroneous in the judgment of the court above, but so unequivocally against the weight of evidence that it ought not to be allowed to stand (g). New trials are also sometimes granted when a party has been taken. by surprise at the trial, or has discovered important

(d) 8 How. St. Tr. 710; 1 Phill. Ev. 3, 10th ed. "Whether there be any evidence is a question for the judge; whether sufficient evidence is for the jury." Per Buller, J., in The Company of Carpenters v. Hayward, Dougl. 375.

(e) The Att.-Gen. v. Rogers, 11 M. & W. 670.

(f) Mould v. Griffith, 8 Jurist,

1010, per Parke, B.; Saunders v.
Davies, 16 Jur. 481, per Pollock,
C. B.; King v. Poole, Ca. temp.
Hardw. 26, per Hardwicke, C. J.

(g) "The discretion of the court to grant a new trial must be a judicial and not an arbitrary discretion:" per Glyn, C. J., in Wood v. Gunston, Sty. 466, M. 1655.


evidence, unknown to him at the time it took place. This division of functions of the judge and jury is expressed by the maxim "ad quæstionem facti non respondent judices, ad quæstionem juris non respondent juratores (i)," which must however be taken with these limitations. 1st. Facts on which the admissibility of evidence depends are determined by the court, not by the jury (k). Thus, whether a sufficient foundation is laid for the reception of secondary evidence is for the judge (1), and if the competency of a witness turns on any disputed fact he must decide it (m). So, whether a confession in a criminal case is receivable (n); and whether on a charge of homicide a dying declaration was made at a time when the deceased was in expectation of death, in which case alone it is admissible (o). Again, a bill of exchange sued on purporting to be a foreign bill, it was offered to shew that it had been drawn in England, and was therefore not admissible for want of an English stamp; it was held, that the judge must decide where the bill was drawn, and admit or reject it as evidence accordingly (p). 2ndly. The jury thus far incidentally determine the law, that their verdict is usually

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Welsted v. Levy, 1 Moo. & R.


(1) Per Alderson, B., in Bennison v. Jewison, 12 Jur. 485.

(m) Bartlett v. Smith, 11 M. & W. 483; R. v. Hill, 2 Den. C. C. 254.

(n) R. v. Warringham, 2 Den. C. C. 447; 15 Jur. 318.

(0) Per Parke, B., in Bartlett v. Smith, 11 M. & W. 483; and per Alderson, B., in Bennison v. Jewison, 12 Jur. 485.

(p) Bartlett v. Smith, 11 M. & W. 483; Bennison v. Jewison, 12 Jur. 485.

general, i. e. guilty, or not guilty, for the plaintiff, or for the defendant-such a verdict being manifestly compounded of the facts and the law as applicable to them. And although the jury have always a right to find a verdict in this form, yet if they feel any doubt about the law, or distrust their own powers of applying it, they may find the facts specially, and leave the court to pronounce judgment according to law on the whole matter (g).

which it is

§ 83. Having given this sketch of the course of "trial Principles on by judge and jury," we should here dismiss the subject, founded. were not a clear perception of the principles on which it is founded indispensable to a right understanding of our rules of judicial evidence. Looking at the different sorts of tribunals which have existed in different ages and countries, we shall find this distinction running through them, viz. that some are fixed and some casual (r). By "fixed" tribunals are meant those composed of persons appointed, either permanently or for a definite time, to take cognizance of causes of a specified kind; and they most usually consist of men who have made legal matters the subject either of their study or practice: "casual," are when the tribunal is called together for the occasion and dismissed when the cause is decided; and should properly consist of private individuals possessed of no peculiar legal knowledge. Now each of these has its advantages and disadvantages. In questions of abstract law the superiority of the fixed tribunal is too obvious to need remark; and even on questions of fact superior education, a most probably higher order of intellect, and practical acquaintance from the experience

(9) See on this subject, Litt. sect. 366, 367, 368; Co. Litt. 155 b, with Hargrave's note (5); Id. 226 b and 228 a; Finch, Law, 399; 3 Blackst. Com. 377,

378; 4 Id. 361; and 32 Geo. 3,
c. 60.

(r) Paley's Moral and Political
Philosophy, bk. 6, ch. 8.

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