In the course of the 12th and 13th centuries the old formal accusatory procedure began to break down, and to be superseded by another form of procedure known as inquisitio, inquest, or enquête. Its decay was hastened by the decree of the fourth Lateran Council in 1215, which forbade ecclesiastics to take part in ordeals. The Norman administrative system introduced into England by the Conquest was familiar with a method of ascertaining and determining facts by means of a verdict, return or finding made on oath by a body of men drawn from the locality. The system may be traced to Carolingian, and even earlier, sources. Henry II., by instituting the grand assize and the four petty assizes, placed at the disposal of litigants in certain actions the opportunity of giving proof by the verdict of a sworn inquest of neighbours, proof “by the country.” The system was gradually extended to other cases, criminal as well as civil. The verdict given was that of persons having a general, but not necessarily a particular, acquaintance with the persons, places and facts to which the inquiry related. It was, in fact, a finding by local popular opinion. Had the finding of such an inquest been treated as final and conclusive in criminal cases, English criminal procedure might, like the continental inquisition, the French enquête, have taken the path which, in the forcible language of Fortescue (De laudibus, &c. ) “leads to hell” (semita ipsa est ad gehennam). Fortunately English criminal procedure took a different course. The spirit of the old accusatory procedure was applied to the new procedure by inquest. In serious cases the words of the jurors, the accusing jurors, were treated not as testimony, but as accusation, the new indictment was treated as corresponding to the old appeal, and the preliminary finding by the accusing jury had to be supplemented by the verdict of another jury. In course of time the second jury were required to base their findings not on their own knowledge, but on evidence submitted to them. Thus the modern system of inquiry by grand jury and trial by petty jury was gradually developed.
A few words may here be said about the parallel development of criminal procedure on the continent of Europe. The tendency in the 12th and 13th centuries to abolish the old formal methods of procedure, and to give the new procedure the name of inquisition or inquest, was not peculiar to England. Elsewhere the old procedure was breaking down at the same time, and for similar reasons. It was the great pope Innocent III., the pope of the fourth Lateran Council, who introduced the new inquisitorial procedure into the canon law. The procedure was applied to cases of heresy, and, as so applied, especially by the Dominicans, speedily assumed the features which made it infamous. “Every safeguard of innocence was abolished or disregarded; torture was freely used. Everything seems to have been done to secure a conviction.” Yet, in spite of its monstrous defects, the inquisitorial procedure of the ecclesiastical courts, secret in its methods, unfair to the accused, having torture as an integral element, gradually forced its way into the temporal courts, and may almost be said to have been adopted by the common law of western Europe. In connexion with this inquisitorial procedure continental jurists elaborated a theory of evidence, or judicial proofs, which formed the subject of an extensive literature. Under the rules thus evolved full proof (plena probatio) was essential for conviction, in the absence of confession, and the standard of full proof was fixed so high that it was in most cases unattainable. It therefore became material to obtain confession by some means or other. The most effective means was torture, and thus torture became an essential feature in criminal procedure. The rules of evidence attempted to graduate the weight to be attached to different kinds of testimony and almost to estimate that weight in numerical terms. “Le parlement de Toulouse,” said Voltaire, “a un usage très singulier dans les preuves par témoins. On admet ailleurs des demi-preuves, ... mais à Toulouse on admet des quarts et des huitièmes de preuves.” Modern continental procedure, as embodied in the most recent codes, has removed the worst features of inquisitorial procedure, and has shaken itself free from the trammels imposed by the old theory and technical rules of proof. But in this, as in other branches of law, France seems to have paid the penalty for having been first in the field with codification by lagging behind in material reforms. The French Code of Criminal Procedure was largely based on Colbert’s Ordonnance of 1670, and though embodying some reforms, and since amended on certain points, still retains some of the features of the unreformed procedure which was condemned in the 18th century by Voltaire and the philosophes. Military procedure is in the rear of civil procedure, and the trial of Captain Dreyfus at Rennes in 1899 presented some interesting archaisms. Among these were the weight attached to the rank and position of witnesses as compared with the intrinsic character of their evidence, and the extraordinary importance attributed to confession even when made under suspicious circumstances and supported by flimsy evidence.
The history of criminal procedure in England has been traced by Sir James Stephen. The modern rules and practice as to evidence and witnesses in the common law courts, both in civil and in criminal cases, appear to have taken shape in the course of the 18th century. The first systematic treatise on the English law of evidence appears to have been written by Chief Baron Gilbert, who died in 1726, but whose Law of Evidence was not published until 1761. In writing it he is said to have been much influenced by Locke.[1] It is highly praised by Blackstone as “a work which it is impossible to abstract or abridge without losing some beauty and destroying the charm of the whole”; but Bentham, who rarely agrees with Blackstone, speaks of it as running throughout “in the same strain of anility, garrulity, narrow-mindedness, absurdity, perpetual misrepresentation and indefatigable self-contradiction.” In any case it remained the standard authority on the law of evidence throughout the remainder of the 18th century. Bentham wrote his Rationale of Judicial Evidence, specially applied to English Practice, at various times between the years 1802 and 1812. By this time he had lost the nervous and simple style of his youth, and required an editor to make him readable. His great interpreter, Dumont, condensed his views on evidence into the Traité des preuves judiciaires, which was published in 1823. The manuscript of the Rationale was edited for English reading, and to a great extent rewritten, by J.S. Mill, and was published in five volumes in 1827. The book had a great effect both in England and on the continent. The English version, though crabbed and artificial in style, and unmeasured in its invective, is a storehouse of comments and criticisms on the principles of evidence and the practice of the courts, which are always shrewd and often profound. Bentham examined the practice of the courts by the light of practical utility. Starting from the principle that the object of judicial evidence is the discovery of truth, he condemned the rules which excluded some of the best sources of evidence. The most characteristic feature of the common-law rules of evidence was, as Bentham pointed out, and, indeed, still is, their exclusionary character. They excluded and prohibited the use of certain kinds of evidence which would be used in ordinary inquiries. In particular, they disqualified certain classes of witnesses on the ground of interest in the subject-matter of the inquiry, instead of treating the interest of the witness as a matter affecting his credibility. It was against this confusion between competency and credibility that Bentham directed his principal attack. He also attacked the system of paper evidence, evidence by means of affidavits instead of by oral testimony in court, which prevailed in the court of chancery, and in ecclesiastical courts. Subsequent legislation has endorsed his criticisms. The Judicature Acts have reduced the use of affidavits in chancery proceedings within reasonable limits. A series of acts of parliament have removed, step by step, almost all the disqualifications which formerly made certain witnesses incompetent to testify.
Before Bentham’s work appeared, an act of 1814 had removed the incompetency of ratepayers as witnesses in certain cases relating to parishes. The Civil Procedure Act 1833 enacted that a witness should not be objected to as incompetent, solely on the ground that the verdict or judgment would be admissible in evidence for or against him. An act of 1840 removed some doubts as to the competency of ratepayers to give evidence in matters relating to their parish. The Evidence Act 1843 enacted broadly that witnesses should not be excluded from giving evidence by reason of incapacity from crime or interest. The Evidence Act 1851 made parties to legal proceedings admissible witnesses subject to a proviso that “nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband.” The Evidence (Scotland) Act 1853 made a similar provision for Scotland. The Evidence Amendment Act 1853 made the husbands and wives of parties admissible witnesses, except that husbands and wives could not give evidence for or against each other in criminal proceedings or in proceedings for adultery, and could not be compelled to disclose communications made to each other during marriage. Under the Matrimonial Causes Act 1857 the petitioner can be examined and cross-examined on oath at the hearing, but is not bound to answer any question tending to show that he or she has been guilty of adultery. Under the Matrimonial Causes Act 1859, on a wife’s petition for dissolution of marriage on the ground of adultery coupled with cruelty or desertion, husband and wife are competent and compellable to give evidence as to the cruelty or desertion. The Crown Suits &c. Act 1865 declared that revenue proceedings were not to be treated as criminal proceedings for the purposes of the acts of 1851 and 1853. The Evidence Further Amendment Act 1869 declared that parties to actions for breach of promise of marriage were competent to give evidence in the action, subject to a proviso that the plaintiff should not recover unless his or her testimony was corroborated by some other material evidence. It also made the parties to proceedings instituted in consequence of adultery, and their husbands and wives, competent to give evidence, but a witness in any such proceeding, whether a party or not, is not to be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless the witness has already given evidence in the same proceeding in disproof of the alleged adultery. There are similar provisions applying to Scotland in the Conjugal Rights (Scotland) Amendment Act 1861, and the Evidence Further Amendment (Scotland) Act 1874. The Evidence Act 1877 enacts that “on the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant shall be admissible witnesses and compellable to give evidence.” From 1872 onwards numerous enactments were passed making persons charged with particular offences, and their husbands and wives, competent witnesses. The language and effect of these enactments were not always the same, but the insertion of some provision to this effect in an act creating a new offence, especially if it was punishable by summary proceedings, gradually became almost a common form in legislation. In the year 1874 a bill to generalize these particular provisions, and to make the evidence of persons charged with criminal offences admissible in all cases was introduced by Mr Gladstone’s government, and was passed by the standing committee of the House of Commons. During the next fourteen years bills for the same purpose were repeatedly introduced, either by the government of the day, or by Lord Bramwell as an independent member of the House of Lords. Finally the Criminal Evidence Act 1898, introduced by Lord Halsbury, has enacted in general terms that “every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.” But this general enactment is qualified by some special restrictions, the nature of which will be noticed below. The act applies to Scotland but not to Ireland. It was not to apply to proceedings in courts-martial unless so applied by general orders or rules made under statutory authority. The provisions of the act have been applied by rules to military courts-martial, but have not yet been applied to naval courts-martial. The removal of disqualifications for want of religious belief is referred to below under the head of “Witnesses.”
The act of 1898 finishes for the present the history of English legislation on evidence. For a view of the legal literature on the subject it is necessary to take a step backwards. Early in the 19th century Chief Baron Gilbert was superseded Literature. as an authority on the English law of evidence by the books of Phillips (1814) and Starkie (1824), who were followed by Roscoe (Nisi Prius, 1827; Criminal Cases, 1835), Greenleaf (American, 1842), Taylor (based on Greenleaf, 1848), and Best (1849). In 1876 Sir James FitzJames Stephen brought out his Digest of the Law of Evidence, based upon the Indian Evidence Act 1872, which he had prepared and passed as law member of the council of the governor-general of India. This Digest obtained a rapid and well-deserved success, and has materially influenced the form of subsequent writings on the English law of evidence. It sifted out what Stephen conceived to be the main rules of evidence from the mass of extraneous matter in which they had been embedded. Roscoe’s Digests told the lawyer what things must be proved in order to sustain particular actions or criminal charges, and related as much to pleadings and to substantive law as to evidence proper. Taylor’s two large volumes were a vast storehouse of useful information, but his book was one to consult, not to master. Stephen eliminated much of this extraneous matter, and summed up his rules in a series of succinct propositions, supplemented by apt illustrations, and couched in such a form that they could be easily read and remembered. Hence the English Digest, like the Indian Act, has been of much educational value. Its most original feature, but unfortunately also its weakest point, is its theory of relevancy. Pondering the multitude of “exclusionary” rules which had been laid down by the English courts, Stephen thought that he had discovered the general principle on which those rules reposed, and could devise a formula by which the principle could be expressed. “My study of the subject,” he says, “both practically and in books has convinced me that the doctrine that all facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the centre of and gives unity to all the express negative rules which form the great mass of the law.” The result was the chapter on the relevancy of facts in the Indian Evidence Act, and the definition of relevancy in s. 7 of that act. This definition was based on the view that a distinction could be drawn between things which were and things which were not causally connected with each other, and that relevancy depended on causal connexion. Subsequent criticism convinced Stephen that his definition was in some respects too narrow and in others too wide, and eventually he adopted a definition out of which all reference to causality was dropped. But even in their amended form the provisions about relevancy are open to serious criticism. The doctrine of relevancy, i.e. of the probative effect of facts, is a branch of logic, not of law, and is out of place both in an enactment of the legislature and in a compendium of legal rules. The necessity under which Stephen found himself of extending the range of relevant facts by making it include facts “deemed to be relevant,” and then narrowing it by enabling the judge to exclude evidence of facts which are relevant, illustrates the difference between the rules of logic and the rules of law. Relevancy is one thing; admissibility is another; and the confusion between them, which is much older than Stephen, is to be regretted. Rightly or wrongly English judges have, on practical grounds, declared inadmissible evidence of facts, which are relevant in the ordinary sense of the term, and which are so treated in non-judicial inquiries. Under these circumstances the attempt so to define relevancy as to make it conterminous with admissibility is misleading, and most readers of Stephen’s Act and Digest would find them more intelligible and more useful if “admissible” were substituted for “relevant” throughout. Indeed it is hardly too much to say that Stephen’s doctrine of relevancy is theoretically unsound and practically useless. The other parts of the work contain terse and vigorous statements of the law, but a Procrustean attempt to make legal rules square with a preconceived theory has often made the language and arrangement artificial, and the work, in spite of its compression, still contains rules which, under a more scientific treatment, would find their appropriate place in other branches of the law. These defects are characteristic of a strong and able man, who saw clearly, and expressed forcibly what he did see, but was apt to ignore or to deny the existence of what he did not see, whose mind was vigorous rather than subtle or accurate, and who, in spite of his learning, was somewhat deficient in the historical sense. But notwithstanding these defects, the conspicuous ability of the author, his learning, and his practical experience, especially in criminal cases, attach greater weight to FitzJames Stephen’s statements than to those of any other English writer on the law of evidence.
The object of every trial is, or may be, to determine two classes of questions or issues, which are usually distinguished as questions of law, and questions of fact, although the distinction between them is not so clear as might Rules. appear on a superficial view. In a trial by jury these two classes of questions are answered by different persons. The judge lays down the law. The jury, under the guidance of the judge, find the facts. It was with reference to trial by jury that the English rules of evidence were originally framed; it is by the peculiarities of this form of trial that many of them are to be explained; it is to this form of trial alone that some of the most important of them are exclusively applicable. The negative, exclusive, or exclusionary rules which form the characteristic features of the English law of evidence, are the rules in accordance with which the judge guides the jury. There is no difference of principle between the method of inquiry in judicial and in non-judicial proceedings. In either case a person who wishes to find out whether a particular event did or did not happen, tries, in the first place, to obtain information from persons who were present and saw what happened (direct evidence), and, failing this, to obtain information from persons who can tell him about facts from which he can draw an inference as to whether the event did or did not happen (indirect evidence). But in judicial inquiries the information given must be given on oath, and be liable to be tested by cross-examination. And there are rules of law which exclude from the consideration of the jury certain classes of facts which, in an ordinary inquiry, would, or might, be taken into consideration. Facts so excluded are said to be “not admissible as evidence,” or “not evidence,” according as the word is used in the wider or in the narrower sense. And the easiest way of determining whether a fact is or is not evidence in the narrower sense, is first to consider whether it has any bearing on the question to be tried, and, if it has, to consider whether it falls within any one or more of the rules of exclusion laid down by English law. These rules of exclusion are peculiar to English law and to systems derived from English law. They have been much criticized, and some of them have been repealed or materially modified by legislation. Most of them may be traced to directions given by a judge in the course of trying a particular case, given with special reference to the circumstances of that case, but expressed in general language, and, partly through the influence of text-writers, eventually hardened into general rules. In some cases their origin is only intelligible by reference to obsolete forms of pleading or practice. But in most cases they were originally rules of convenience laid down by the judge for the assistance of the jury. The judge is a man of trained experience, who has to arrive at a conclusion with the help of twelve untrained men, and who is naturally anxious to keep them straight, and give them every assistance in his power. The exclusion of certain forms of evidence assists the jury by concentrating their attention on the questions immediately before them, and by preventing them from being distracted or bewildered by facts which either have no bearing on the question before them, or have so remote a bearing on those questions as to be practically useless as guides to the truth. It also prevents a jury from being misled by statements the effect of which, through the prejudice they excite, is out of all proportion to their true weight. In this respect the rules of exclusion may be compared to blinkers, which keep a horse’s eyes on the road before him. In criminal cases the rules of exclusion secure fair play to the accused, because he comes to the trial prepared to meet a specific charge, and ought not to be suddenly confronted by statements which he had no reason to expect would be made against him. They protect absent persons against statements affecting their character. And lastly they prevent the infinite waste of time which would ensue in the discussion of a question of fact if an inquiry were allowed to branch out into all the subjects with which that fact is more or less connected. The purely practical grounds on which the rules are based, according to the view of a great judge, may be illustrated by some remarks of Mr Justice Willes (1814-1872). In discussing the question whether evidence of the plaintiff’s conduct on other occasions ought to be admitted, he said:—
“It is not easy in all cases to draw the line and to define with accuracy where probability ceases and speculation begins; but we are bound to lay down the rule to the best of our ability. No doubt the rule as to confining the evidence to that which is relevant and pertinent to the issue is one of great importance, not only as regards the particular case, but also with reference to saving the time of the court, and preventing the minds of the jury from being drawn away from the real point they have to decide.... Now it appears to me that the evidence proposed to be given in this case, if admitted, would not have shown that it was more probable that the contract was subject to the condition insisted upon by the defendant. The question may be put thus, Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion? To admit such speculative evidence would, I think, be fraught with great danger.... If such evidence were held admissible it would be difficult to say that the defendant might not in any case, where the question was whether or not there had been a sale of goods on credit, call witnesses to prove that the plaintiff had dealt with other persons upon a certain credit; or, in an action for an assault, that the plaintiff might not give evidence of former assaults committed by the defendant upon other persons, or upon other persons of a particular class, for the purpose of showing that he was a quarrelsome individual, and therefore that it was highly probable that the particular charge of assault was well founded. The extent to which this sort of thing might be carried is inconceivable.... To obviate the prejudices, the injustice, and the waste of time to which the admission of such evidence would lead, and bearing in mind the extent to which it might be carried, and that litigants are mortal, it is necessary not only to adhere to the rule, but to lay it down strictly. I think, therefore, the fact that the plaintiff had entered into contracts of a particular kind with other persons on other occasions could not be properly admitted in evidence where no custom of trade to make such contracts, and no connexion between such and the one in question, was shown to exist” (Hollingham v. Head, 1858, 4 C.B. N.S. 388).
There is no difference between the principles of evidence in civil and in criminal cases, although there are a few special rules, such as those relating to confessions and to dying declarations, which are only applicable to criminal proceedings. But in civil proceedings the issues are narrowed by mutual admissions of the parties, more use is made of evidence taken out of court, such as affidavits, and, generally, the rules of evidence are less strictly applied. It is often impolitic to object to the admission of evidence, even when the objection may be sustained by previous rulings. The general tendency of modern procedure is to place a more liberal and less technical construction on rules of evidence, especially in civil cases. In recent volumes of law reports cases turning on the admissibility of evidence are conspicuous by their rarity. Various causes have operated in this direction. One of them has been the change in the system of pleading, under which each party now knows before the actual trial the main facts on which his opponent relies. Another is the interaction of chancery and common-law practice and traditions since the Judicature Acts. In the chancery courts the rules of evidence were always less carefully observed, or, as Westminster would have said, less understood, than in the courts of common law. A judge trying questions of fact alone might naturally think that blinkers, though useful for a jury, are unnecessary for a judge. And the chancery judge was apt to read his affidavits first, and to determine their admissibility afterwards. In the meantime they had affected his mind.
The tendency of modern text-writers, among whom Professor J.B. Thayer (1831-1902), of Harvard, was perhaps the most independent, instructive and suggestive, is to restrict materially the field occupied by the law of evidence, and to relegate to other branches of the law topics traditionally treated under the head of evidence. Thus in every way the law of evidence, though still embodying some principles of great importance, is of less comparative importance as a branch of English law than it was half a century ago. Legal rules, like dogmas, have their growth and decay. First comes the judge who gives a ruling in a particular case. Then comes the text-writer who collects the scattered rulings, throws them into the form of general propositions, connects them together by some theory, sound or unsound, and often ignores or obscures their historical origin. After him comes the legislator who crystallizes the propositions into enactments, not always to the advantage of mankind. So also with decay. Legal rules fall into the background, are explained away, are ignored, are denied, are overruled. Much of the English law of evidence is in a stage of decay.
The subject-matter of the law of evidence may be arranged differently according to the taste or point of view of the writer. It will be arranged here under the following heads:—I. Preliminary Matter; II. Classes of Evidence; III. Rules of Exclusion; IV. Documentary Evidence; V. Witnesses.