cial evidence a as a whole. § 119. But, whatever the age or origin of our system The English of judicial evidence, it is on the whole a noble one, and system of judi. may fearlessly challenge comparison with all others. noble one, taken Its principal features stand out in strong and fine relief, while its leading rules are based on the most indisputable principles of truth and common sense. It must not, Defects in it. however, be supposed perfect; on the contrary, it has defects which well-wishers behold with regret. The application of its great rules having occasionally fallen to the lot of unskilful or careless hands, the general out tice in the latter part of the seventeenth century nearly as it exists at the present day. The difficulty is to trace its progress in the intervening period. Fortescue, De Laud. Leg. Ang. cc. 26, 32, towards the close of the fifteenth century, considers the jury in the light of witnesses. Vavisor arguendo, a little later, in the 14 Hen. VII. 29 b, pl. 4, 2 Rol. Ab. 677, pl. 27; and Brooke, Recorder of London, arguendo, in the middle of the next century, Reniger v. Fogassa, Plowd. 12, H. 4 Edw. VI., state it as clear that a jury may find their verdict without any evidence laid before them. So Staundf. P. C. 130 a, speaking of the stat. 1 Edw. VI. c. 12, says, "Mes bien garda le juge, quant tielx parolx sont mises in lenditement, que ceux qui donont evidence, les dites parolx bien et substantialment provont per lour evidence, auxi avant come le principal fact, et sils ne font, lessa le juge admonisher le jury de ceo, s. que il ny ad ascun proofe de tielx parolx per le evidence, et per tant nient tenus de le trover, sils ne conusteront ceo de eur mesmes." "Albeit by the common law," says Sir Edward Coke, 3 Inst.163, "trial of matters of fact is by the verdict of twelve men &c. and deposition of witnesses is but evidenced to them: yet, most commonly juries are led by deposition of witnesses, &c." Solate as the 17 Jac. I. (1619), C. J. Hobart says (Darcy v. Liegh, Hob. 325), that he "observed the wisdom of the common law did allow none to be a juryman in ætate probandâ that was not forty-two years; for he tried things twenty-one years past, and is not to be a juror until he be twenty-one years." And in Style's Pract. Reg. 335, 4th Ed. "A jury may find a thing which is not given unto them in evidence if they do know it of their own knowledge. M. 22 Car. B. R. For they may inform themselves of the truth of the fact they are to try by all possible and lawful means they can, and are not solely tied to the evidence given at the bar." On the other hand however we find a case of Lee v. Saville, in Clayton's Pleas line has been in some places badly filled up, and lines cross that ought to bound the domain of principles just in themselves, and the extension of which to cases where they are inapplicable has frequently been productive of injustice and exposed the whole to censure. Add to this that the comparatively modern growth of the system rendered it impossible to get rid at once of all the erroneous principles, as well as straightlaced applications of sound ones, which were borrowed by our ancestors from the civilians of the middle ages. of Assize, 31, pl. 54, August Assizes, 11 Car. I. (1635), where it is stated that "the judge did put back the jury twice because they offered their verdict contrary to their evidence." The following case is reported in 1 Lilly, Pr. Reg. 552. “If any one of the jury that is sworn to try the issue, be desired to give his testimony concerning some matter of fact that lies in his particular knowledge, and concerns the matter in question as evidence to his fellow jurors, the court will have him examined openly in court upon his oath touching his knowledge therein, and he is not to deliver his testimony in private unto his fellow jurors." 31 Oct. 1650, Mich. B. S. And in Wood v. Gunston, M. 1655, Sty. 466, referred to in Roe v. Hawkes, 1 Lev. 97, a motion for a new trial having been made on the ground of excessive damages and that the jury had favoured the plaintiff; it was objected, that "after verdict the partiality of the jury ought not to be questioned, nor is there any precedent for it in our books of the law, and it would be of dangerous consequence if it should be suffered, and the greatness of the damages given can be no cause for a new trial;" but Glyn, C. J. said, "It is in the discretion of the court in some cases to grant a new trial, but this must be a judicial, and not an arbitrary discretion, and it is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them, and it is for the people's benefit that it should be so, for a jury may sometimes by indirect dealings be moved to side with one party, and not to be indifferent betwixt them, but it cannot be so intended of the court." In Bayly v. Boorne, 1 Str. 392, however, the court said "the power of granting a new trial even in superior courts is not of any great standing, the first instance of any new trial being in Styles." These authorities are far from exhausting the subject, but it would be irrelevant to discuss it farther. sufficient attention not paid to official preappointed evi dence. testimony. 120. But besides these imperfections, which perhaps may be looked on as adventitious, our system has faults of a more positive kind. Thus, sufficient attention was not paid by its founders to official preappointed evidence; and although some steps have been taken in this direction by the 6 & 7 Will. IV. c. 86, and subsequent statutes, for the registration of births, marriages and deaths; the 1 & 2 Vict. c. 110, s. 9, requiring a professional attestation to cognovits and warrants of attorney to confess judgment, &c., there is still room for improvement; and the principles of various foreign codes might, under due restrictions and with the required caution, be advantageously introduced here. Its shortcoming is nowhere Perpetuating more painfully visible than in the want of some cheap and expeditious means of perpetuating testimony. "Id observandum, aliquando hodie probationem suscipi ante litem contestatam; si reus prævideat, se conventum iri, et periculum sit ne testes quibus exceptionem suam judici probare queat, moriantur, vel alio migrent; vel si actor metuat, ne sibi testimonium propter testium morbum vel absentiam pereat. Id quod doctores vocant probationem in perpetuam rei memoriam (s)." With the exception of the writs of "warrantia chartæ (t)," "curiâ claudendâ (u)" (both abolished by 3 & 4 Will. IV. c. 27, s. 36), and a few other instances, the common law did not allow legal proceedings on the mere suspicion of intended wrong or breach of duty; and in furtherance probably of this principle has provided no general mode of perpetuating testimony, for which purpose recourse must usually be had to a bill in equity (x). But the process is circuitous, expensive, and frequently inadequate; and there can be little doubt that much valuable evidence is daily carried to the grave. It is easier however to detect the disease (s) Heinec. ad Pand. pars 4, § 125. (t) F. N. B. 134 K. (r) See 3 Blackst. Comm. 450; Com. Dig. Chancery R. 2 Phill. Ev. 453, 10th Ed. and 5 & 6 Vict. c. 69. Nomenclature objectionable. than point out the fitting remedy; and this difficulty has been felt by the lawgivers of other countries, as well as in our own (y). § 121. Finally, the nomenclature of this branch of jurisprudence is somewhat objectionable; an evil greater than might at first sight be imagined. Among the abuses of words one of our ablest metaphysicians classes the unsteady application, and affected obscurity by wrong application, of them (z): and Lord Bacon shrewdly remarks, "Although we think we govern our words, and prescribe it well 'loquendum ut vulgus, sentiendum ut sapientes,' yet certain it is that words, as a Tartar's bow, do shoot back upon the understanding of the wisest, and mightily entangle and pervert the judgment (a)." Several important phrases in the law of evidence; such as "presumption," "best evidence," "written evidence," "hearsay evidence," "parol evidence," &c., have two, and some even more different significations; and many idle arguments and erroneous decisions to be found in our books are clearly traceable to this ambiguity of language. (y) See Domat, Lois Civiles, part. 1, liv. 3, tit. 6, sect. 3. (2) Locke on the Human Un derstanding, bk. 3, ch. 10, §§ 5, 6. (a) Bacon's Advancement of Learning, bk. 2. PART II. INSTRUMENTS OF EVIDENCE. what. § 122. By “Instruments of Evidence" is meant the Instruments of media through which the evidence of facts, either dis- evidenceputed or required to be proved, is conveyed to the mind of a judicial tribunal (a). They are of three kinds : 1. "Witnesses :"-persons who inform the tribunal respecting facts. 2. "Real Evidence"-evidence from things. Although in natural order the subject of real evidence (a) "Instrumentorum nomine ea omnia accipienda sunt, quibus causa instrui potest: et ideo tam testimonia, quam personæ instrumentorum loco habentur." Dig. lib. 22, tit. 4, 1. 1. The word "instrument" has, however, both Three kinds. |