EVIDENCE

EVIDENCE.

By evidence, taken in the widest sense of the term, is meant whatever is the ground of assent, or tends to generate belief in the statement of any fact or truth. The means by which men acquire a knowledge of all the facts or truths which evidence brings before them may be referred to two sources; for either the perceptive faculties of the individual himself, or the observations and conclusions of others, present them to the mind. The first may be called the evidence of personal experience, the latter is generally known as the evidence of testimony. The former embraces all the phenomena of consciousness, the intuitive perception of our own existence, and of what is actually passing in our minds, and also all the phenomena of the outer world afforded by the senses. The knowledge, therefore, which is derived from the evidence of sense, of memory, of deduction, induction or inference, and analogy, may be referred to this head; and its chief characteristic is, that it is superior in degree to that obtained through the experience of other men, inasmuch as we rely solely on the operation of our own faculties, and the belief resulting therefrom is lively and strong. In some instances this kind of evidence is fitted to produce belief in the very highest degree, as in the phenomena of self-consciousness, in an act of memory or perception, in which the evidence is immediate and irresistible, and commands instant belief. No process of reasoning, either demonstrative or probable, being necessary in its acquisition, the knowledge and the evidence on which it is believed are both called intuitive. Again, in regard to those truths which are not intuitive, but are embraced under the subjects investigated by demonstration, analogy, and induction, the knowledge is not immediate, but attained through the medium of reasoning. In the evidence of demonstration—the process by which a result is shown to be a necessary consequence of the premises from which it is asserted to follow on the supposition that these premises are admitted—the belief reaches to the highest degree of certainty; but induction and analogy only afford that assurance which amounts to high probability: they never reach to necessity, or absolute certainty; and of such truths the most that is affirmed of them is, that there is no reasonable doubt concerning them. Hence the evidence employed to discover these truths has received the name of moral or probable evidence, which is thus distinguished from the intuitions of conscious-

ness, or the demonstrations of necessary relations. The word probable is not to be taken as indicating an inferior degree of evidence, but as a species, in which the truths of fact to be proved are not necessary but contingent. According to this definition, moral evidence includes those judgments which are based on the testimony of others vouching their observation or experience.

It is manifest that by far the greater portion of our knowledge is obtained through other men, and received by us as true on the evidence of testimony. So limited indeed is the experience of each individual of the human race, that without this communicated knowledge men could never have advanced beyond a rude state of existence. But, on the other hand, this source wants that certainty of truth which personal observation and reflection afford; for the degree of assurance which is produced in the human mind necessarily varies according to our confidence in the veracity of the narrators, the opportunities they have had, and the probability of the facts themselves. It follows that the credit due to the testimony of a witness depends, 1st, On his trustworthiness, and, 2d, on the probability of the fact attested. Two elements enter into the trustworthiness of a witness; 1st, His means of knowledge, and, 2d, his desire to report the truth.

In reference to the first of these, the witness must have had sufficient opportunity of observing what he describes, and he must have intellectual capacity to observe and remember the facts, and judge of their authenticity and character. As Bentham has remarked, "Where the botanist sees a rare and perhaps a new plant, the husbandman sees a weed; where the mineralogist sees a new ore, pregnant with some new metal, the labourer sees a lump of dirt, not distinguishable from the rest, unless it be by being heavier and more troublesome."

In estimating the intention of the witness to narrate the truth, we are influenced by various considerations. If he be a person on whose evidence we have relied on former occasions, or if we have credible proof of his having been a veracious witness, or if he be a stranger, or have formerly misled us, we either receive the testimony implicitly or with caution, or reject it altogether. The honesty of a witness is further affected by the presence or absence of motives to falsify his evidence. In proportion as we have no reason to

Evidence. suspect the witness to be influenced by interest or passion, our confidence in the evidence rises. Other elements affect our belief in the trustworthiness of a witness; such as the likelihood of contradiction which might ensue did he deviate from the truth, his deportment in delivering his testimony, and the support his evidence receives from the concurrence of other witnesses. The last point is of the utmost importance, and where no suspicion of collusion or connivance exists, the agreement of several witnesses places the fact testified beyond all doubt. The credibility of each individual may then be left unconsidered, for that several should concur in all essential particulars and yet be insincere or incorrect amounts—such is our faith in human testimony—to an impossibility.

The degree of belief we give to matters of fact attested by others is much affected by the probability of the fact itself, that is, by its accordance with our previous experience. When an alleged fact is so repugnant to the laws of the material world that no amount of evidence can induce us to believe it, it is said to be impossible. But impossibility is a relative term, and bears a certain ratio to the state of human knowledge. In such circumstances, men conceive that the evidence is a mistake, either intentional or unintentional, and refuse to believe it. This subject has acquired great importance in consequence of Hume's argument, that miracles, that is, supernatural events, or, as they were wrongly called by him, "violations of the laws of nature," are incapable of proof, because they are contradicted by our ordinary experience and observation. The refutations of his argument have been numerous, and no farther notice need here be taken of it than to quote an observation from one of the most recent writers on the subject. Mill, in his Logic, has observed, "All that Hume has made out is that no evidence can prove a miracle to any one who did not previously believe the existence of a Being with supernatural power, or who believed himself to have full proof that the character of the Being whom he recognises is inconsistent with his having seen fit to interfere on the occasion in question." Hence, to establish the impossibility of a miracle, it is required to show that the intervention of supernatural agency is incompetent, or would not be exercised in producing the effect. The "firm and unalterable experience," upon which Hume so much relied, affords too narrow a basis even for sceptical philosophers in the ordinary affairs of life, and they are content to receive much of their knowledge, not from their own experience, but from that of other men. But it is true that statements which accord with facts we already know are received upon a lower degree of evidence than those which appear to us improbable in the present state of our knowledge. If the fact be of the latter kind, or entirely beyond the sphere of experience, we require, indeed, stronger evidence, but we should beware of undue distrust. This is shown in the story so often quoted from the days of Locke, in which the king of Siam, who was told by the Dutch ambassador that in his country water sometimes became so solid that an elephant might walk over it, thus replied, "Hitherto I have believed the strange things you have told me, because I look upon you as a man of sobriety and truth, but now I am sure you lie." The test of probability then is not personal experience only, but the nature and quality of the evidence adduced are also elements to be considered; and in proportion as the witnesses are more numerous and of higher credit, and have no interest to speak contrary to the truth, and are uncontradicted by others, the matter of fact ought to be more or less believed.

Besides these there are other principles on which reliance on testimony is based, and among others there may be mentioned the consistency of the different parts of the narrative. There must be no contradiction between the various facts attested by the witness. For if it be self-con-

tradictory, the evidence cannot be received. But if the Evidence. contradiction lies in some cause or effect erroneously added by the witness to the fact, then the latter remains unshaken; for it is only the inconsistency of the facts themselves which destroys the credibility of a witness. If, again, there be several witnesses to the facts, the weight of their testimony depends on their mutual consistency. If one witness should either omit a matter of importance attested by another, or contradict the other's narrative by some positive discrepancy, discredit is thrown on the evidence, which will fall to be rejected altogether, or a preference given to one rather than another according to the trustworthiness of the particular witnesses.

In all questions of fact there appears to be in the human mind an instinctive reliance on testimony based on the knowledge of the natural inclination of men to speak the truth. These principles are relative and correlative of each other, and have been called by some the instinctive principle of credulity and counter principle of veracity. It is not necessary here to inquire whether belief in testimony is an ultimate or innate principle of the human mind; it is undoubtedly true that it is modified by experience. But there is another basis, upon which circumstantial evidence rests, of a totally different character. It is founded wholly on the relation and connection subsisting between collateral facts or circumstances and the fact to be proved. It is similar to the principle so well known in physical and moral investigations and analyses—the impossibility of accounting for the facts on any other hypothesis. It is thus the philosopher or historian endeavours to establish some doubtful truth by inference or analogy more or less remote, and a chain of facts and circumstances connects the accused with the crime in such a way as to exclude the hypothesis of innocence. It is in questions of this nature that the judgments of men are found continually to differ. The most opposite opinions are formed as to the credence and weight due to the circumstances adduced; and a scientific question, or historical fact, or alleged crime, which one man considers as not only probable but as certain truth, another holds to be impossible. The hypothesis is more likely to be true in proportion to the greater number of circumstances; and in general the mind is satisfied if the evidence on the whole coincides with and supports the hypothesis which it is adduced to prove, and a conclusion as satisfactory as direct evidence can produce is frequently founded on circumstances alone. But in criminal cases, in which circumstantial evidence is so frequently used, greater strictness is required. It is essential that every circumstance necessary to the hypothesis should be satisfactorily proved. If one of the links be wanting, or not established by proof, then the basis is defective, and no conclusion can be drawn. Moreover it ought to be impossible to draw any other conclusion from the circumstances than that proposed to be proved, for their possible combinations are so numerous that the acutest intellect may be baffled in discovering the connecting link. But when every other hypothesis is excluded, the conclusion is forced upon the mind with an even stronger conviction than in direct evidence, for in the latter case the testimony of personal observation is felt to be more fallible than the connection between the circumstances and the conclusion drawn.

Various arbitrary divisions of evidence have been made, of which it is here necessary to mention only two. Evidence is either direct or indirect—original or transmitted. It is direct, when the fact is attested by those who speak from their personal knowledge immediately; it is indirect, when the fact is inferred from other collateral facts clearly proved, which are supposed to have a relation proximate or remote to the fact in controversy. The latter is the circumstantial evidence of jurisprudence. Evidence is original, when it rests solely on the credit of the witness who attests

Evidence. the fact; it is transmitted when it rests also on the veracity and competency of some other person, who has transmitted it to the reporter. It is manifest that if a man testify facts not lying within his own knowledge, but from information derived from others, the security for their truth is weakened in proportion to their remoteness from the original observer. "A credible man, vouching his knowledge of the thing itself," says Locke, "is a good proof; but if another equally credible do witness it from his report, the testimony is weaker, and a third that attests the hearsay of an hearsay is yet less considerable." Yet many historical truths depend on no other evidence than hearsay; and it is apparent that in the ordinary business of life, and in historical and philosophical investigation, transmitted evidence is frequently of the greatest value, being often the sole guide on which the inquirer proceeds.

Evidence (Judicial).—In the preceding part of this article, the rules of moral or probable evidence have been given. In jurisprudence, the practical importance of the subject has attracted much attention, and in every country a body of artificial rules has been framed on certain exclusive principles, differing considerably from those of natural or moral evidence. The divergence from natural equity has been so complete, that Mr Bentham states it to be his belief that if all the grounds of exclusion were collected into one from the various systems, including the Gentoo and Chinese, no witness in any cause could possibly be examined at all. In England the law of evidence in early times was extremely loose, and what was admissible seems to have depended on the tendencies of the judge. Accordingly, in the early state trials hearsay evidence is not unfrequently admitted; but though the law of evidence is a modern creation, the leading principles on which it is founded have been known from the earliest times; and the contrast between the two epochs seems to lie in this, that the judge now administers the law on fixed exclusive principles. The necessity or value of resorting to such exclusive principles has been denied by Bentham. Here it may be shortly observed that jurists trace the origin of the distinction between legal and natural evidence to the necessity of preventing fraud in the speedy action of judicial tribunals—of limiting the discretionary power of the judge as to the nature of the evidence to be admitted—of providing more certain tests of truth than are necessary in the ordinary affairs of life, and in the characteristic differences between legal and historical investigations. The result of these considerations has been to annex an artificial weight to particular evidence, or to set up certain exclusive rules.

The first general principle or rule is, that the best evidence of which the case in its nature is susceptible ought to be adduced. "The true meaning," says Gilbert, "of the rule of law that requires the greatest evidence that the nature of the thing is capable of, is this—That no such evidence shall be brought, which, ex natura rei, supposes still a greater evidence behind in the parties' own possession and power." This rule leads to the exclusion of all secondary evidence so long as any primary exists. Thus a written contract must be proved by the production of the deed itself, if it is within the power of the party. No copy or parole can be substituted in room of the principal unless it be proved to be destroyed or lost. Another consequence of this rule is, that all hearsay is rejected. Hearsay or transmitted evidence in law includes not only verbal reports, but also writings transcribed from the originals. It is excluded, not only because it supposes that better evidence exists, but it is also intrinsically weak, and affords a cover for the practice of fraud. Yet, where the necessity of the case requires it, hearsay ought to be admitted. Accordingly, it is received, 1st, in matters of public and general interest, where ancient rights are concerned, and the persons are supposed to be dead; 2d, in the case of declarations and entries made by

deceased persons against their interest; 3d, both in criminal and civil cases the dying declaration of the injured party and the statements of a competent deceased witness are allowed to be proved under certain conditions.

The next general rule of evidence is, that the burden of proof lies on the party maintaining the affirmative of the question at issue, conformably to the maxim of the Roman law, "Ei incumbit probatio qui dicit, non qui negat." In explicating this rule, the onus of proof is determined by the affirmative in substance, not the affirmative in form; and the burden may be shifted by presumptions, either of law or of fact, or the capacity of the contending parties to adduce the evidence.

Two other general rules of evidence may be shortly stated without comment. The evidence must correspond with the allegations made by the parties. All beyond this is irrelevant, and the proof, if offered, is to be rejected. This rule confines the evidence to what is material and necessary to prove the case of the litigant. The other rule is, that the evidence must be sufficient to prove the substance of the issue. This rule protects the litigant from excessive strictness on the one hand, and on the other requires that nothing essentially descriptive of the claim or charge shall be wanting.

So many rules of exclusion have been recently abolished by statute, that it may be well to enumerate some of the objections of former and later times to the admissibility of witnesses.

1st, By the ancient practice of most European countries women were inadmissible; and even when admitted, their evidence was not considered equivalent to that of a man. So late as 1824, in some of the Swiss cantons, the testimony of two women was equal only to that of one man. In Scotland there exists a remnant of the former practice in the exclusion of females as witnesses to the subscription of deeds.

2d, Infamy of character was formerly a ground of exclusion. Wherever one had been convicted of a crime inferring infamy, he was perpetually disqualified. This was at first modified, and at length altogether abolished by Lord Denman's Evidence Act (6th and 7th Vict., cap. 85): in Scotland the equivalent statute is the 15th Vict., cap. 27.

3d, No witness can now decline to give evidence on the ground of relationship; and, with the single exception of husband and wife, relations may now be compelled to give evidence both for and against each other. By a statute passed in 1853, which, however, applies only to England, husbands and wives are competent and compellable to give evidence either for or against each other in any suit, with the exception of criminal cases. In both countries, where the party injured is one of the spouses, the other is of necessity a competent witness in the case.

4th, The objection of incompetency from interest has been also recently abolished. So far back as the time of Fielding, the impolicy of this ground of exclusion was observed; in his Amelia he thus criticises the law of evidence on this head:—"There is no branch of the law more bulky, more full of confusion and contradiction, I had almost said absurdity, than the law of evidence as it now stands. One rule of this law is that no man interested shall be sworn as a witness. By this is meant pecuniary interest; but are mankind governed by no passion but avarice? Are not pride, hatred, and the other passions, as powerful tyrants in the mind of man? And is not the interest which these passions propose to themselves, by the enjoyment of their object, as powerful a motive to evil as the hope of any pecuniary interest whatever?" Notwithstanding objections so apparent, the exclusion arising from interest was firmly fixed in our law, and was only recently removed in regard to witnesses, and still more recently in regard to the parties to the suit themselves.

Evidence. 5th, The only other grounds of objection, to which reference need be made, which have been removed by the legislature, are enmity, agency and partial counsel. It appears to be doubtful whether the last two ever did more in England than affect the credibility of the witness, and in Scotland they are now in the same position. The cause of this enlightened course of legislation is well stated in the preamble of Lord Denman's act, which recites that the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it was desirable that full information as to the facts in issue, both in criminal and civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony. The above objections have now accordingly become simply questions of credibility in the hands of the jury, and have been wholly removed from the province of the judge. The tendency of legislation and the inclination of our judges at the present time is to admit all evidence where it is original; when such testimony is excluded, all attainable proof bearing on the question in dispute may be destroyed, and substantial injustice done to one or other of the contending parties.

The means by which the matter of fact in dispute is proved before a judicial tribunal are called the instruments of evidence, and are either written or unwritten.

1st, Of Unwritten or Oral Evidence.—The law compels every one who is in possession of evidence bearing on the matter in dispute, to be a witness, and to attend as such at the trial. The witness must answer all relevant questions which do not criminate himself. And the court will interfere to protect a witness who is pressed to answer questions tending to bring disgrace upon him, unless the ends of justice clearly require it. All persons, male or female, who are of sane mind, and capable of understanding the oath to speak the truth, are admissible as witnesses.

Before the recent legislation, to which reference has been made, many rules existed as to the admissibility of witnesses. The only grounds of incompetency still existing in our law are two in number:—1st, From want of reason and maturity of intellect; and, 2d, From professed want of religion.

Under those incompetent from want of reason, are included all idiots from birth, and fatuous persons, who have wholly lost intellect and memory, and those who have reduced themselves to that condition by their own vicious acts, as drunkards, and lunatics during the period of derangement; but lunatics in their lucid intervals, and monomaniacs in matters apart from the particular delusion, appear to be competent witnesses.

Children of tender years are likewise excluded from want of maturity of intellect. The old lawyers stated broadly that "infants under fourteen years of age are not to be examined upon their oath as witnesses." In modern times the rule is relaxed, and children are sworn as witnesses between the ages of twelve and fourteen, where the judge is satisfied that they understand the nature of an oath. In reference to children below twelve years, their admissibility depends upon the sense and reason, and the general intelligence they manifest, and their understanding as to the impropriety of falsehood; but they do not give evidence on oath, but simply emit a declaration, and the weight of the testimony is a question exclusively for the jury.

The only other ground of incompetency now known arises from the want of religious belief. Where the witness does not believe in the existence of a God, in the obligation of an oath, and in a future state of rewards and punishments, he is not admissible. It is not sufficient that he believes himself bound to speak the truth, merely from a regard to character, or the interests of society, or the fear of punishment by the temporal law.

2d, Of Written Evidence.—Documents, which may be

put in evidence, are either public or private. To the former head may be referred acts of parliament, the judgments of courts, the acts of public functionaries, entries in public registers, and extracts from judicial records. The mere inspection by the court of evidence of this kind is sufficient. Acts of parliament are either public or private; those which are public are presumed to be known to all, and a reference by citation of the statute book is sufficient; as to those which are private, a copy compared with the official roll must be produced. Extracts of judicial proceedings under the seal of the court, and the proceedings of foreign judicatures, are received when authenticated in the manner required by the laws of the country. So entries in various public registers, as the register of births, deaths, and marriages, or of probative deeds, when certified by the proper official officer, are probative. Among private writings are regular deeds, wills, notarial instruments, and the executions of officers of the law. These must be executed and authenticated in the manner prescribed by the law of the country where the contract or obligation is entered into; and the execution of the deed must be proved by one at least of the attesting witnesses; but in Scotland, when certain solemnities required by statute are observed, a presumptive evidence arises in favour of the instrument, which is probative in all respects until it is challenged or reduced on the grounds of forgery, fraud, or error. Documents thus authenticated and proved are the highest species of evidence, and are superior to any oral proof of the transaction that could be offered. In truth, it is in general incompetent to endeavour to supersede or contradict a written instrument, or supply a defect or explain the intention of the writer by parole evidence. Parole is, however, competent in the challenge of a deed where fraud is alleged, or to prove a mistake or error.

The statutes passed recently to alter and amend the law of evidence have simplified and improved it to a great extent. Nor can there be any doubt that the course of legislation has been enlightened and in the true direction; nay, so much has been done, at least in removing grounds of exclusion, that little remains to be effected. Yet the expediency of rejecting any witness for incompetency may well be doubted. Wherever one has been an eye-witness to the facts in dispute, or can give testimony bearing on these, the law ought to admit the evidence. It is doubtful, therefore, whether the want of religious belief should remain a recognised ground of incompetency. Respect for character and social position, the principles of natural morality, and the fear of punishment in this life, may in such cases be as strong checks on perjury as the more formal appeal to divine vengeance in taking an oath. Unsworn testimony is received in certain instances; it might be extended to those who deny the obligation of an oath, but admit the strength of moral law, and the duty to society that each man should speak truth. Again, the English system of evidence neglects the preservation of written testimony. Public documents, deeds, and instruments used in the transmission of real property, contracts, and wills, ought to have been an object of solicitude to the government; and a speedy and cheap means of preserving such evidence has still to be discovered and put in practice. Bentham, and others after him, argue for the admission of hearsay or transmitted evidence under certain forms and conditions, so that a jury may weigh its value, and admit or reject it as circumstances demand. But the opening which this would give to fraud and dishonesty seems too palpable to hazard the experiment. In admitting it, all personal responsibility, and the safeguards of cross-examination, of publicity, and of the solemn obligation of an oath, would be removed. All those qualities in a witness on which his credibility depends, his disposition to speak the truth, and his power of observing and remembering, would also be unknown. Besides, it is often impossible to trace the source through which