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HISTORY OF THE RISE AND PROGRESS OF THE ENGLISH LAW OF
Object of this chapter
EVIDENCE, ETC.
136
137
the
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
former relate to the quid probandum, the latter to the modus pro-
bandi ..
..
-
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..
3. It is sufficient for a party on whom the burden of proof lies
to prove the substance of the issue
Estoppels
Presumptions
In former times the principles of evidence not embodied in binding
rules
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
153
Means of obtaining evidence in possession of the opposite
Secondary causes contributing to the establishment of our modern
2. The allowing counsel in criminal cases
3. Change in the functions of the jury
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
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.
PAGE
161
.. 161
162
163
168
Presumption in favour of human testimony
Distinction between competency and credibility 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 ..
.. 172
. 173
177
. 178
179
. 179
180
.. 181
3 & 4 Will. IV. c. 42
183
. 184
185
. 185
187
188
188, 189
189
. 189
GROUNDS OF SUSPICION OF ORAL TESTIMONY.
Exceptions to the credit of witnesses..
Interests and motives producing falsehood and misrepresentation
1. Pecuniary interest
2. Relations between the sexes
3. Other domestic and social relations
4. Desire to preserve reputation
5. Interest in or sympathy for others