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.
SUMMARY.
Law { Substantive—relating to the subject-matter of litigation.
{ Procedural—relating to the process of litigation.
The occasional equivalence of substantive and procedural rules.
Procedure. Its elements: Summons, Pleading, Proof, Judgment, and