INTRODUCTION. SECT. I.-(continued.)

PAGE

Different notions of men as to impossibility and improbability 20

Different persons may consider a thing possible or pro-

20

2. Unoriginal, derivative, transmitted, or second-hand evi-

2. Supposed written evidence delivered through oral 24

3. Supposed written evidence delivered through

4. Supposed oral evidence delivered through written 24

5. Reported real evidence

24

29

Reasons which give birth to municipal law shew the necessity

for authoritative regulation of proofs in its administration

1. Necessity for limiting the discretion of tribunals in deter-

mining facts ..

32

Principal checks imposed on its tribunals by English law 32

1. Judges and jurymen must not decide facts on

their personal knowledge

32

22

2. As a condition precedent to the reception of

evidence there must be an open and visible con-

nexion between the principal and evidentiary facts 33

Difference between public and domestic jurisdiction. 34

2. Necessity for speedy action of tribunals

Philosophical and historical inquiries

Ordinary business of life ..

Interest reipublicæ ut sit finis litium

..

36

36

38

38

38

39

39

39

41

41

41

Different kinds of

3. In framing rules of judicial proof the consequences of

decisions must be looked to

..

Mischiefs of blameable passiveness in the law not so
great as those arising from its misguided action
The condemnation of an innocent person a greater
evil than the acquittal of a guilty one

INTRODUCTION. SECT. II.-(continued.)~

Relevant evidence often excluded on motives of public

Misconceptions and errors from confounding legal with

philosophical and historical evidence

Sir Walter Raleigh

Bentham ..

PAGE

54

55

55

57

57

Not necessarily imprecatory

Canonical purgation

Decisory and suppletory oaths of the civil law
Frequency of them

3. Establishment of prescribed forms for preappointed evi-

Forms superadded to writing

Consequence of non-observance of prescribed forms
Generally, the non-compliance with them renders
the transaction a nullity

Bentham's objections to this

Principles laid down by Sir W. D. Evans

4. Rejection of the testimony of suspected persons

Policy of this ..

Enormous abuses of it

Testimony of women

5. Requiring a certain number of witnesses or media of proof 73

93

94

94

1. The admissibility of evidence is matter of law, but the weight of

evidence is matter of fact

2. Matters of law, including the admissibility of evidence, are

proper to be determined by a fixed, matters of fact by a casual

tribunal

3. In determining the admissibility of evidence, the production of

the best evidence should be exacted

Distinction between the admissibility and weight of evidence

The one matter of law, the other matter of fact

Common law tribunal for deciding issues of fact

Functions of judge

94

94

95

96

PAGE

.. 97

New trials for errors or misconduct of juries

Maxim "Ad quæstionem facti non respondent judices, ad quæs-

tionem juris non respondent juratores"

1. Facts on which the admissibility of evidence depends

are determined by the court

97

98

98

98

Common law tribunal of a compound nature-partly fixed
and partly casual ..

..

The term "Rules of Evidence" most properly applicable to evi-

dence in causâ

Discretion of judge with reference to rules of forensic practice 105

ONE GENERAL RULE OF EVIDENCE in causà-The best evidence must

True meaning of it best understood from three chief applica-

tions of it

1. Judge and jury must not act on their personal know-

ledge

2. Original evidence must, in general, be adduced

3. There must be an open and visible connection between

the principal and evidentiary facts

Indicative evidence

Rules of evidence are in general the same in civil and criminal

proceedings.

108

108

109

112

..

113

Difference as to the effect of evidence in civil and criminal pro-

ceedings..

How far the rules of evidence may be relaxed by consent

Two other remarkable features of the English system

1. Vivâ voce examination and cross-examination of witnesses

121

2. Publicity of judicial proceedings

1. Its salutary effect on witnesses

Exceptions to the rule requiring the personal attend-

ance of witnesses