SUMMARY.
Obligations defined.
Choses in action.
Solidary obligations:
Their nature.
Their kinds:
1. Several.
2. Joint.
3. Joint and several.
Contractual obligations.
Delictal obligations:
The nature of a tort:
1. A civil wrong.
2. Actionable by way of damages.
3. Not a mere breach of contract.
4. Not a mere breach of trust or other equitable obligation.
Quasi-contractual obligations:
The nature of quasi-contract.
Instances of quasi-contracts.
Reasons of their recognition.
Innominate obligations.
CHAPTER XXII.
THE LAW OF PROCEDURE.
§ 172. Substantive Law and the Law of Procedure.
It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure, and it will conduce to clearness if we first consider a plausible but erroneous explanation. In view of the fact that the administration of justice in its typical form consists in the application of remedies to the violations of rights, it may be suggested that substantive law is that which defines the rights, while procedural law determines the remedies. This application, however, of the distinction between jus and remedium is inadmissible. For in the first place there are many rights which belong to the sphere of procedure; for example, a right of appeal, a right to give evidence on one’s own behalf, a right to interrogate the other party, and so on. In the second place, rules defining the remedy may be as much a part of the substantive law as are those which define the right itself. No one would call the abolition of capital punishment, for instance, a change in the law of criminal procedure. The substantive part of the criminal law deals not with crimes alone, but with punishments also. So in the civil law, the rules as to the measure of damages pertain to the substantive law, no less than those declaring what damage is actionable; and rules determining the classes of agreements which will be specifically enforced are as clearly substantive as are those determining the agreements which will be enforced at all. To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.
What, then, is the true nature of the distinction? The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions—jus quod ad actiones pertinet—using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. Procedural law is concerned with affairs inside the courts of justice; substantive law deals with matters in the world outside.
A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the courts fulfil their functions. What facts constitute a wrong is determined by the substantive law; what facts constitute proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. Whether an offence is punishable by fine or by imprisonment is a question of substantive law, for the existence and measure of criminal liability are matters pertaining to the end and purpose of the administration of justice. But whether an offence is punishable summarily or only on indictment is a question of procedure. Finally it may be observed that, whereas the abolition of capital punishment would be an alteration of the substantive law, the abolition of imprisonment for debt was merely an alteration in the law of procedure. For punishment is one of the ends of the administration of justice, while imprisonment for debt was merely an instrument for enforcing payment.
So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.
Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance.
Of these equivalent procedural and substantive principles there are at least three classes sufficiently important to call for notice here.
1. An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence that a contract can be proved only by a writing corresponds to a rule of substantive law that a contract is void unless reduced to writing. In the former case the writing is the exclusive evidence of title; in the latter case it is part of the title itself. In the former case the right exists but is imperfect, failing in its remedy through defect of proof. In the latter case it fails to come into existence at all. But for most purposes this distinction is one of form rather than of substance.
2. A conclusive evidential fact is equivalent to, and tends to take the place of, the fact proved by it. All conclusive presumptions pertain in form to procedure, but in effect to the substantive law. That a child under the age of seven years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime. That the acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability. A bond (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of substantive law.
3. The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right. The former leaves an imperfect right subsisting; the latter leaves no right at all. But save in this respect their practical effect is the same, although their form is different.
The normal elements of judicial procedure are five in number, namely Summons, Pleading, Proof, Judgment, and Execution. The object of the first is to secure for all parties interested an opportunity of presenting themselves before the court and making their case heard. Pleading formulates for the use of the court and of the parties those questions of fact or law which are in issue. Proof is the process by which the parties supply the court with the data necessary for the decision of those questions. Judgment is this decision itself, while execution, the last step in the proceeding, is the use of physical force in the maintenance of the judgment, when voluntary submission is withheld. Of these five elements of judicial procedure one only, namely proof, is of sufficient theoretical interest to repay such abstract consideration as is here in place. The residue of this chapter, therefore, will be devoted to an analysis of the essential nature of the law of evidence.
§ 173. Evidence.
One fact is evidence of another when it tends in any degree to render the existence of that other probable. The quality by virtue of which it has such an effect may be called its probative force, and evidence may therefore be defined as any fact which possesses such force. Probative force may be of any degree of intensity. When it is great enough to form a rational basis for the inference that the fact so evidenced really exists, the evidence possessing it is said to constitute proof.
It is convenient to be able to distinguish shortly between the fact which is evidence, and the fact of which it is evidence. The former may be termed the evidential fact, the latter the principal fact. Where, as is often the case, there is a chain of evidence, A. being evidence of B., B. of C., C. of D. and so on, each intermediate fact is evidential in respect of all that follow it and principal in respect of all that precede it.
1. Evidence is of various kinds, being in the first place either judicial or extrajudicial. Judicial evidence is that which is produced to the court; it comprises all evidential facts that are actually brought to the personal knowledge and observation of the tribunals. Extrajudicial evidence is that which does not come directly under judicial cognizance, but nevertheless constitutes an intermediate link between judicial evidence and the fact requiring proof. Judicial evidence includes all testimony given by witnesses in court, all documents produced to and read by the court, and all things personally examined by the court for the purposes of proof. Extrajudicial evidence includes all evidential facts which are known to the court only by way of inference from some form of judicial evidence. Testimony is extrajudicial, when it is judicially known only through the relation of a witness who heard it. A confession of guilt, for example, is judicial evidence if made to the court itself, but extrajudicial if made elsewhere and proved to the court by some form of judicial evidence. Similarly a document is judicial evidence if produced, extrajudicial if known to the court only through a copy, or through the report of a witness who has read it. So the locus in quo or the material subject-matter of a suit becomes judicial evidence, when personally viewed by the court, but is extrajudicial when described by witnesses.
It is plain that in every process of proof some form of judicial evidence is an essential element. Extrajudicial evidence may or may not exist. When it is present, it forms an intermediate link or a series of intermediate links in a chain of proof, the terminal links of which are the principal fact at one end and the judicial evidence at the other. Judicial evidence requires production merely; extrajudicial evidence stands itself in need of proof.
2. In the second place evidence is either personal or real. Personal evidence is otherwise termed testimony. It includes all kinds of statements regarded as possessed of probative force in respect of the facts stated. This is by far the most important form of evidence. There are few processes of proof that do not contain it—few facts that are capable of being proved in courts of justice otherwise than by the testimony of those who know them. Testimony is either oral or written, and either judicial or extrajudicial. There is a tendency to restrict the term to the judicial variety, but there is no good reason for this limitation. It is better to include under the head of testimony or personal evidence all statements, verbal or written, judicial or extrajudicial, so far as they are possessed of probative force. Real evidence, on the other hand, includes all the residue of evidential facts. Anything which is believed for any other reason than that some one has said so, is believed on real evidence. This, too, is either judicial or extrajudicial, though here also there is a tendency to restrict the term to the former use.
3. Evidence is either primary or secondary. Other things being equal, the longer any chain of evidence the less its probative force, for with each successive inference the risk of error grows. In the interests of truth, therefore, it is expedient to shorten the process, to cut out as many as possible of the intermediate links of extrajudicial evidence, and to make evidence assume the judicial form at the earliest practicable point. Hence the importance of the distinction between primary and secondary evidence. Primary evidence is evidence viewed in comparison with any available and less immediate instrument of proof. Secondary evidence is that which is compared with any available and more immediate instrument of proof. Primary evidence of the contents of a written document is the production in court of the document itself; secondary evidence is the production of a copy or of oral testimony as to the contents of the original. Primary evidence that A. assaulted B. is the judicial testimony of C. that he saw the assault; secondary evidence is the judicial testimony of D. that C. told him that he saw the assault. That secondary evidence should not be used when primary evidence is available is, in its general form, a mere counsel of prudence; but in particular cases, the most important of which are those just used as illustrations, this counsel has hardened into an obligatory rule of law. Subject to certain exceptions, the courts will receive no evidence of a written document save the document itself, and will listen to no hearsay testimony.
4. Evidence is either direct or circumstantial. This is a distinction important in popular opinion rather than in legal theory. Direct evidence is testimony relating immediately to the principal fact. All other evidence is circumstantial. In the former case the only inference required is one from testimony to the truth of it. In the latter the inference is of a different nature, and is generally not single but composed of successive steps. The testimony of A. that he saw B. commit the offence charged, or the confession of B. that he is guilty, constitutes direct evidence. If we believe the truth of the testimony or confession, the matter is concluded, and no further process of proof or inference is required. On the other hand, the testimony of A. that B. was seen by him leaving the place where the offence was committed, and having the instrument of the offence in his possession, is merely circumstantial evidence; for even if we believe this testimony, it does not follow without a further inference, and therefore a further risk of error, that B. is guilty. Direct evidence is commonly considered to excel the other in probative force. This, however, is not necessarily the case, for witnesses lie, and facts do not. Circumstantial evidence of innocence may well prevail over direct evidence of guilt; and circumstantial evidence of guilt may be indefinitely stronger than direct evidence of innocence.
§ 174. The Valuation of Evidence.
The law of evidence comprises two parts. The first of these consists of rules for the measurement or determination of the probative force of evidence. The second consists of rules determining the modes and conditions of the production of evidence. The first deals with the effect of evidence when produced, the second with the manner in which it is to be produced. The first is concerned with evidence in all its forms, whether judicial or extrajudicial; the second is concerned with judicial evidence alone. The two departments are intimately connected, for it is impossible to formulate rules for the production of evidence without reference and relation to the effect of it when produced. Nevertheless the two are distinct in theory, and for the most part distinguishable in practice. We shall deal with them in their order.
In judicial proceedings, as elsewhere, the accurate measurement of the evidential value of facts is a condition of the discovery of truth. Except in the administration of justice, however, this task is left to common sense and personal discretion. Rules and maxims, when recognised at all, are recognised as proper for the guidance of individual judgment, not for the exclusion of it. But in this, as in every other part of judicial procedure, law has been generated, and, in so far as it extends, has made the estimation of probative force or the weighing of evidence a matter of inflexible rules excluding judicial discretion. These rules constitute the first and most characteristic portion of the law of evidence. They may be conveniently divided into five classes, declaring respectively that certain facts amount to:—
1. Conclusive proof—in other words, raise a conclusive presumption;
2. Presumptive proof—in other words, raise a conditional or rebuttable presumption;
3. Insufficient evidence—that is to say, do not amount to proof, and raise no presumption, conclusive or conditional;
4. Exclusive evidence—that is to say, are the only facts which in respect of the matter in issue possess any probative force at all;
5. No evidence—that is to say, are destitute of evidential value.
I. Conclusive presumptions.—By conclusive proof is meant a fact possessing probative force of such strength as not to admit of effective contradiction. In other words, this fact amounts to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction. By a conclusive presumption is meant the acceptance or recognition of a fact by the law as conclusive proof.
Presumptive or conditional proof, on the other hand, is a fact which amounts to proof, only so long as there exists no other fact amounting to disproof. It is a provisional proof, valid until overthrown by contrary proof. A conditional or rebuttable presumption is the acceptance of a fact by the law as conditional proof.[[476]]
One of the most singular features in early systems of procedure is the extent to which the process of proof is dominated by conclusive presumptions. The chief part of the early law of evidence consists of rules determining the species of proof which is necessary and sufficient in different cases, and allotting the benefit or burden of such proof between the parties. He who would establish his case must maintain it, for example, by success in that judicial battle the issue of which was held to be the judgment of Heaven (judicium Dei); or he must go unscathed through the ordeal, and so make manifest his truth or innocence; or he must procure twelve men to swear in set form that they believe his testimony to be true; or it may be sufficient if he himself makes solemn oath that his cause is just. If he succeeds in performing the conditions so laid upon him, he will have judgment; if he fails even in the slightest point, he is defeated. His task is to satisfy the requirements of the law, not to convince the court of the truth of his case. What the court thinks of the matter is nothing to the point. The whole procedure seems designed to take away from the tribunals the responsibility of investigating the truth, and to cast this burden upon providence or fate. Only gradually and reluctantly did our law attain to the conclusion that there is no such royal road in the administration of justice, that the heavens are silent, that the battle goes to the strong, that oaths are naught, and that there is no just substitute for the laborious investigation of the truth of things at the mouths of parties and witnesses.
The days are long since past in which conclusive presumptions played any great part in the administration of justice. They have not, however, altogether lost their early importance. They are, indeed, almost necessarily more or less false, for it is seldom possible in the subject-matter of judicial procedure to lay down with truth a general principle that any one thing is conclusive proof of the existence of any other. Nevertheless such principles may be just and useful even though not wholly true. We have already seen how they are often merely the procedural equivalents of substantive rules which may have independent validity. They have also been of use in developing and modifying by way of legal fictions the narrow and perverted principles of the early law. As an illustration of their employment in modern law we may cite the maxim Res judicata pro veritate accipitur. A judgment is conclusive evidence as between the parties, and sometimes as against all the world, of the matters adjudicated upon. The courts of justice may make mistakes, but no one will be heard to say so. For their function is to terminate disputes, and their decisions must be accepted as final and beyond question.
II. Conditional presumptions.—The second class of rules for the determination of probative force are those which establish rebuttable presumptions. For example, a person shown not to have been heard of for seven years by those who would naturally have heard of him if he had been alive, is presumed to be dead. So also a negotiable instrument is presumed to have been given for value. So also a person accused of any offence is presumed to be innocent.
Many of these presumptions are based on no real estimate of probabilities, but are established for the purpose of placing the burden of proof upon the party who is best able to bear it, or who may most justly be made to bear it. Persons accused of crime are probably guilty, but the presumption of their innocence is in most cases and with certain limitations clearly expedient.
III. Insufficient evidence.—In the third place the law contains rules declaring that certain evidence is insufficient, that its probative force falls short of that required for proof, and that it is therefore not permissible for the courts to act upon it. An example is the rule that in certain kinds of treason the testimony of one witness is insufficient—almost the sole recognition by English law of the general principle, familiar in legal history, that two witnesses are necessary for proof.
IV. Exclusive evidence.—In the fourth place there is an important class of rules declaring certain facts to be exclusive evidence, none other being admissible. The execution of a document which requires attestation can be proved in no other way than by the testimony of an attesting witness, unless owing to death or some other circumstance his testimony is unavailable. A written contract can be proved in no other way than by the production of the writing itself, whenever its production is possible. Certain kinds of contracts, such as one for the sale of land, cannot be proved except by writing, no verbal testimony being of virtue enough in the law to establish the existence of them.
It is only in respect of very special kinds of contracts that written evidence can wisely be demanded by the law. In the case of all ordinary mercantile agreements such a requirement does more harm than good; and the law would do well in accepting the principle that a man’s word is as good as his bond. The Statute of Frauds, by which most of these rules of exclusive evidence have been established, is an instrument for the encouragement of frauds rather than for the suppression of them. How much longer is it to remain in force as a potent instrument for the perversion of English law? Its repeal would sweep away at one stroke the immense accumulation of irrational technicality and complexity that has grown in the course of centuries from this evil root.
V. Facts which are not evidence.—Fifthly and lastly there are rules declaring that certain facts are not evidence, that is to say, are destitute of any probative force at all. Such facts are not to be produced to the court, and if produced no weight is to be attributed to them, for no accumulation of them can amount to proof. For example, hearsay is no evidence, the bond of connexion between it and the principal fact so reported at second hand being in the eye of the law too slight for any reliance to be justly placed upon it. Similarly the general bad character of an accused person is no evidence that he is guilty of any particular offence charged against him; although his good character is evidence of his innocence.
These rules of exclusion or irrelevancy assume two distinct forms, characteristic respectively of the earlier and later periods in the development of the law. At the present day they are almost wholly rules for the exclusion of evidence; in earlier times they were rules for the exclusion of witnesses. The law imposed testimonial incapacity upon certain classes of persons on the ground of their antecedent incredibility. No party to a suit, no person possessing any pecuniary interest in the event of it, no person convicted of any infamous offence, was a competent witness. His testimony was deemed destitute of evidential value on account of the suspicious nature of its source. The law has now learned that it is not in this fashion that the truth is to be sought for and found. It has now more confidence in individual judgment and less in general rules. It no longer condemns witnesses unheard, but receives the testimony of all, placing the old grounds of exclusion at their proper level as reasons for suspicion but not for antecedent rejection. Whether rules for the exclusion of evidence are not in general exposed to the same objections that have already prevailed against the roles for the exclusion of witnesses is a question which we shall presently consider.
§ 175. The Production of Evidence.
The second part of the law of evidence consists of rules regulating its production. It deals with the process of adducing evidence, and not with the effect of it when adduced. It comprises every rule relating to evidence, except those which amount to legal determinations of probative force. It is concerned for example with the manner in which witnesses are to be examined and cross-examined, not with the weight to be attributed to their testimony. In particular it includes several important rules of exclusion based on grounds independent of any estimate of the probative force of the evidence so excluded. Considerations of expense, delay, vexation, and the public interest require much evidence to be excluded which is of undoubted evidential value. A witness may be able to testify to much that is relevant and important in respect of the matters in issue, and nevertheless may not be compelled or even permitted to give such testimony. A public official, for example, cannot be compelled to give evidence as to affairs of state, nor is a legal adviser permitted or compellable to disclose communications made to him by or on behalf of his client.
The most curious and interesting of all these rules of exclusion is the maxim, Nemo tenetur se ipsum accusare. No man, not even the accused himself, can be compelled to answer any question the answer to which may tend to prove him guilty of a crime. No one can be used as the unwilling instrument of his own conviction. He may confess, if he so pleases, and his confession will be received against him; but if tainted by any form of physical or moral compulsion, it will be rejected. The favour with which this rule has been received is probably due to the recoil of English law from the barbarities of the old Continental system of torture and inquisitorial process. Even as contrasted with the modern Continental procedure, in which the examination of the accused seems to English eyes too prominent and too hostile, the rule of English law is not without merits. It confers upon a criminal trial an aspect of dignity, humanity, and impartiality, which the contrasted inquisitorial process is too apt to lack. Nevertheless it seems impossible to resist Bentham’s conclusion that the rule is destitute of any rational foundation, and that the compulsory examination of the accused is an essential feature of sound criminal procedure. Even its defenders admit that the English rule is extremely favourable to the guilty, and in a proceeding the aim of which is to convict the guilty, this would seem to be a sufficient condemnation. The innocent have nothing to fear from compulsory examination, and everything to gain; the guilty have nothing to gain, and everything to fear. A criminal trial is not to be adequately conceived as a fight between the accused and his accuser; and there is no place in it for maxims whose sole foundation is a supposed duty of generous dealing with adversaries. Subject always to the important qualification that a good prima facie case must first be established by the prosecutor, every man should be compellable to answer with his own lips the charges that are made against him.[[477]]
A matter deserving notice in connexion with this part of the law of evidence is the importance still attached to the ceremony of the oath. One of the great difficulties involved in the process of proof is that of distinguishing between true testimony and false. By what test is the lying witness to be detected, and by what means is corrupt testimony to be prevented? Three methods commended themselves to the wisdom of our ancestors. These were the judicial combat, the ordeal, and the oath. The first two of these have long since been abandoned as ineffective, but the third is still retained as a characteristic feature of judicial procedure, though we may assume with some confidence that its rejection will come in due time, and will in no way injure the cause of truth and justice.
Trial by battle, so soon as it acquired a theory at all, became in reality a form of ordeal. In common with the ordeal commonly so called, it is the judicium Dei; it is an appeal to the God of battles to make manifest the right by giving the victory to him whose testimony is true. Successful might is the divinely appointed test of right. So in the ordeal, the party or witness whose testimony is impeached calls upon Heaven to bear witness to his truth by saving him harmless from the fire. The theory of the oath is generically the same. “An oath,” says Hobbes,[[478]] “is a form of speech added to a promise; by which he that promiseth, signifieth that unless he perform, he renounceth the mercy of his God, or calleth to him for vengeance on himself. Such was the heathen form, Let Jupiter kill me else, as I kill this beast. So is our form, I shall do thus and thus, so help me God.” The definition is correct save that it is restricted to promissory, instead of including also declaratory oaths. A man may swear not only that he will speak the truth, but that certain statements are the truth.
The idea of the oath, therefore, is that his testimony is true who is prepared to imprecate divine vengeance on his own head in case of falsehood. Yet it needs but little experience of courts of justice to discover how ineffective is any such check on false witness and how little likely is the retention of it to increase respect either for religion or for the administration of justice. The true preventive of false testimony is an efficient law for its punishment as a crime. Punishment falling swiftly and certainly upon offending witnesses would purge the courts of an evil which the cumbrous inefficiency of the present law of perjury has done much to encourage, and which all the oaths in the world will do nothing to abate.[[479]]
§ 176. Criticism of the Law of Evidence.
We have in a former chapter considered the advantages and disadvantages of that substitution of predetermined principles for judicial discretion which constitutes the essential feature of the administration of justice according to law. In no portion of our legal system is this question of more immediate importance than in the law of evidence. Here, if anywhere, the demerits of law are at a maximum, and those of the opposing system at a minimum. General rules for the predetermination of probative force are of necessity more or less false. It is impossible to say with truth and a priori what evidence is or is not sufficient for proof. It is not true that hearsay is absolutely destitute of evidential value; it is not true that a contract for the sale of land cannot be satisfactorily proved by oral testimony; it is not true that the contents of a document cannot be well proved by a copy of it. To elevate these maxims and such as these from their proper position as counsels for warning and guidance, to the level of rigid and peremptory rules, is to be inevitably led astray by them. Like all general principles they are obtained by way of abstraction and elimination of elements which may be, in particular instances, of the first importance. To apply such abstract principles to concrete cases without making the needful allowance for the special circumstances of these cases is as wise as to apply the laws of motion without allowing for the disturbing influence of friction.
No unprejudiced observer can be blind to the excessive credit and importance attached in judicial procedure to the minutiae of the law of evidence. This is one of the last refuges of legal formalism. Nowhere is the contrast more striking between the law’s confidence in itself and its distrust of the judicial intelligence. The fault is to be remedied not by the abolition of all rules for the measurement of evidential value, but by their reduction from the position of rigid and peremptory to that of flexible and conditional rules.[[480]] Most of them have their source in good sense and practical experience, and they are profitable for the guidance of individual discretion, though mischievous as substitutes for it. The cases are few in which we can rightly place such rules upon the higher level. In general, courts of justice should be allowed full liberty to reject as irrelevant, superfluous, or vexatious, whatever evidence they will, and to accept at such valuation as they please whatever evidence seems good to them. We must learn to think less highly of the wisdom of the law, and less meanly of the understanding and honour of its administrators, and we may anticipate with confidence that in this department at least of judicial practice the change will be in the interests of truth and justice.