HISTORY OF THE RISE AND PROGRESS OF THE ENGLISH LAW OF

Object of this chapter

EVIDENCE, ETC.

..

136

136

137

Inconsistent dicta as to the antiquity of the judicial evidence of this

country

Difference between the ancient and modern systems

Division of rules of evidence into primary and secondary — the

former relate to the quid probandum, the latter to the modus pro-

..

138

1. The evidence adduced must be directed solely to the

matters in dispute

2. The burden of proof lies on the party who would be de-

feated supposing no evidence given on either side.. 138

3. It is sufficient for a party on whom the burden of proof lies

to prove the substance of the issue

Universally recognized

Our antient lawyers aware of its infirmity

Opinions of witnesses not evidence

In former times the principles of evidence not embodied in binding

PART I. CHAP. II.-(continued.)

Illustration from second-hand evidence

PAGE

145

Want of binding rules one cause of the abuses in the old State Trials 145

Origin of the modern" Law of Evidence”

Its characteristic feature-Rules of Evidence are Rules of Law

Gradual development of this principle ..

..

History of the rule rejecting hearsay evidence ..

Progress of other parts of the law of evidence during the last

148

149

. 151

151

..

The English system of judicial evidence a noble one, taken as a whole 155

Defects in it

155

Sufficient attention not paid to official preappointed evidence .. 157

Want of cheap and expeditious means of perpetuating testimony 157

Nomenclature objectionable

158

152

152-153

..

153

..

.. 153

153

PART II. CHAP. I.-(continued.)

SECTION I.

WHAT PERSONS ARE COMPELLABLE TO GIVE EVIDENCE.

Generally, all persons compellable to give evidence

Privilege of witnesses in not answering questions

Questions tending to criminate, or expose to forfeiture
Questions tending to disgrace

SECTION II.

INCOMPETENCY OF WITNESSES.

Witnesses rejected for erroneous or obnoxious opinions ..

Roman, civil, and ecclesiastical laws

Dicta of Sir Edward Coke, in the First Institute and in

Calvin's case

..

Exposure of their fallacy, by L. C. J. Willes

Omychund (or Omichund) v. Barker

Practice in accordance with it

1 & 2 Vict. c. 105..

Rules of incompetency in the English law ..

Interested witnesses

Rule established by the courts in Lord Kenyon's time

Illustrations of it

Inefficiency of it

3 & 4 Will. IV. c. 42

Incompetency from infamy of character

How removable

Alterations effected by 6 & 7 Vict. c. 85

Expediency of rejecting witnesses as incompetent

Grounds of incompetency still existing in our law

1. Want of reason and understanding

Deficiency of intellect-person non compos mentis

1. Different sorts of

Four usually enumerated

Exceptions to the credit of witnesses..

Interests and motives producing falsehood and misrepresentation