mentioned an instance (not after all of very rare occurrence) where a cause, which had run the gauntlet of litigation in all the courts of Westminster Hall, was finally carried on appeal to the House of Lords, "and the result' said his Lordship was that the House of Lords reversed the decision of the Lord Chancellor in his presence.'

In the case of the Judge, legal training will do much; and a Judge ought to be an individual possessed of powers of investigation, and a capacity for judgment, to an extent proportionate to his vocation. Still even the judicial mind, albeit though subjected to a long previous professional training, must vary no less in the strength of its perceptive, than in the power of its analytic and reasoning faculties; and though much is said of the uncertainty of the law,' the wonder in fact is, not that Courts should be so uncertain, but that they should be so certain in their conclusions, as practically they are found.

Probably the best solution is found in the answer suggested by Qualification of prin- Mr. Wills, in the average uniformity of judgment ciple. to be looked for in the educated mind; notwithstanding the occasional instances of men either rising above, or falling below the common standard::

"It may be objected' says he that the minds of men are SO differently constituted, and so much influenced by differences of culture, that the same evidence may produce very different degrees of belief; that one man may unhesitatingly believe an alleged fact, upon evidence which will not in any degree sway the mind of another. It must be admitted that scepticism and credulity are modifications of the same principle, and that to a certain extent this objection is grounded in fact; but, nevertheless, the psychological considerations which it involves have but little alliance with the present subject; the argument, if pushed to its extreme, would go to introduce universal doubt and

* See 1, Phillip's Report, p. 584.

distrust, and to destroy all confidence in human judgment founded upon moral evidence. It is as impossible to reduce men's minds to the same standard, as it is to bring their bodies to the same dimensions; but in the one case, as well as in the other, there is a general agreement and similarity, any wide departure from which is instantly perceived to be eccentric and extravagant. The question is, not what may be the possible effect of evidence upon minds peculiarly constructed, but what ought to be its fair result with minds such as the generality of civilized men are.

Circumstantial Evidence, p. 20.

CHAPTER III.

On the application of the English Law of Evidence to India.

English Law of Evidence, that of India.

In the two preceding chapters we have discussed the general nature and classifications of evidence as recognized by English Law; and the more prominent criteria of the value of testimony. It may be convenient, before entering upon the minuter detail of this law, to point out its application to India.

In future chapters we shall take occasion to notice such difference as exists in specific instances; more especially under the operation of the recent Indian Evidence Act (Act II of 1855) and the Codes of Civil and Criminal Procedure; and we omit from the work what otherwise would have no bearing on Indian proceedings. As a general proposition, however, it may be stated, that the English Law of Evidence is that of India, and as well in the Courts of the Mofussil, as those of the Presidencies. In fact the Evidence Act, though with some occasional variation, is in the main borrowed from English Law, or founded upon its principles.

In the ordinary Common Law and Criminal Courts of England, the course of procedure is to entrust to a Jury of Jury trial. twelve individuals, specially summoned for the purpose, the determination of the fact involved in the trial, leaving to the Court the application of the Law. This is not however, the case with all the Courts of the country; and, as an ordinary one, subject to provision for invoking the aid of a Jury in certain prescribed cases, the practice of other Civil Courts, those of Equity, Bankruptcy, Insolvency, Probate, Divorce and Matrimonial Causes, the Ecclesiastical, Admiralty and Small Cause Courts, constitutes the Judge the arbiter of the fact as well as of the law.

The Supreme Courts of the Indian Presidencies, except in criminal cases, and their Small Cause Courts, are in conformity with the principle of the latter in leaving

Indian Courts.

the decision to the Judge; as are the Mofussil Courts in reference to Civil business.

Regulation Law, however, in the case of criminal trial, provides for the Native Courts of India, at all events in Bengal, when presided over by a Commissioner of Circuit or Judge of Session, the power of availing themselves, under the discretion of the Judge, of the assistance of respectable Natives, either for the purpose of constituting a Punchayet for the institution of enquiries apart from the Court-Assessors to sit with it, and aid it by its observations, particularly in the examination of the witnesses;—or persons to be employed more nearly as a Jury, attending during the trial of a case, suggesting points of enquiry, and after deliberation delivering their verdict. In cases too, involving the religious prejudice of Mahomedans or other classes, the Regulations more especially enjoin a trial under the assistance of a Jury.*

Apart however from the difficulty often found to exist of finding Natives of the prescribed character, within the locality, the Judge is not bound by the verdict of the Jury, even when summoned; so that practically in the native Courts too, not only in civil, but in criminal cases, the Mofussil Judge for the most part, has the fact to determine for himself as well as the law.

Both the Hindu and Mahomedan Codes of Law which once prevailed in India, or in different portions of it, had cerNot governed by Native law of Evidence. tain rules of evidence of their own; and many of them very much at variance with those of English Law.

It is a fundamental principle of Jurisprudence, however, that, in every country, the Law of its own Courts,-the 'lex fori,' as it is termed,not only prescribes generally to all its suitors its own course of procedure, but adopts its own rules of evidence as those upon which the issues depending before it are to be tried; however much in transactions originating in foreign localities, a deference is yielded to the-lex loci contractus,'—that is, the law or usage of the country in which the obligation was contracted; and though the Charter preserves to the Natives of

* Beaufort's Digest of Criminal Law (1857) Sections 1244-5.

India, in all matters of contract and succession, their own laws and customs, it fails to attach, as part of this, their peculiar Laws of Evidence.

A notion was indeed at one time abroad, that the Mahomedan Law of Evidence was that which was to prevail even in the British Courts of India. However this

Mahomedan Law-how dealt with.

has long since been exploded in all the Presidencies.

So long indeed as the 'futwa' or certificate of the Law Officer of the Court, in cases involving the application of Mahomedan Law, was allowed, as it originally was, to furnish a rule for decision, some practical difficulty was presented by the opposition in which this futwa was constantly found to the principles of the English Law of Evidence. But this was got rid of, in the Bengal Presidency, by a Regulation so old as 1793;— which provided, that in cases where the evidence given on a trial would be deemed incompetent by the Mahomedan Law, solely on the ground of the persons giving such evidence not professing the Mahomedan religion, the Law Officer of the Sessions Court was to declare what would have been his futwa, supposing such witnesses had been Mahomedans. In such cases the Court was not to pass sentence, but to transmit the record of the trial, with such futwa, to the Nizamut Adawlut; and that Court, provided it approved of the proceedings held on the trial, was to pass such sentence as it would have passed had the witness been of the Mahomedan religion.*

To supply an illustration ;—

There are few crimes less likely to be committed in the presence of a number of beholders than rape. Yet for a conviction for this, Mussulman law requires the testimony of at least four eye-witnesses. In an otherwise clearly established case of rape, accordingly, which is to be found among the reports of the Nizamut Adawlut, Oodasien's case,† the futwa of the Law Officer of the Court had declared that this condition not having been complied with, a conviction could not be sustained,

* Beaufort, (1857), Section 623.

† 1 Nizamut Adawlut p, 217.

P