Ut lex moneat oportet, priusquam feriat-It is right the Law should admonish before it strikes Ut res valeat magis quam pereat-That an act may avail rather than not avail ... Ut supra-As above stated ... ... ... ... ... ... ... 761a 770,837 ... Utile per inutile non vitiatur-The essential is not vitiated by the unessential ... Vanæ voces populi non sunt audiendæ, nec enim vocibus eorum credi Vice versa-The reverse ... Vigilantibus et non dormientibus jura subveniunt-Laws assist the vigilant, not those who sleep upon their rights Viperina est expositio quæ corrodit viscera textûs-Poisonous is that construction which corrupts the words of the text Viperina expositio-Poisonous construction... Vivâ voce-By the living voice, i. e., by word of mouth. 309,328,504,508,519etseq. Voir dire-Examining a witness before he gives evidence in the cause to ascertain whether he be interested or not Voluntarius dæmon-A demoniac by his own voluntary act (used of a drunkard), LECTURES ON THE LAW OF EVIDENCE. (FOUNDED ON STARKIE.) CHAPTER I. INTRODUCTORY. § 1. Law is either Divine or Human. The former is not the subject of our present consideration: our attention is confined to Human Law. § 2. Human Law(a) may be divided on various principles; that which is most useful for our present purpose is to divide it into International and National. § 3. By International, I refer to those great fundamental principles of justice, by which States, equal among each other, and owning no superior, have nevertheless agreed to be mutually bound, and which by comity of Nations are embodied in the Law of Nations. Such for instance, are the Rights of War and Peace. This great branch of law we may also exclude. § 4. There remains the other branch: National, or as it is somewhat infelicitously termed Municipal Law. (b) The particular Municipal Law with which we are concerned, is the Municipal or National Law of England. § 5. Blackstone's definition of human law in general, slightly altered, will describe the law of England. It is "The rule of civil conduct, prescribed by the Supreme power in the State." (c) § 6. But though all the Law is prescribed, it is not therefore all (a) How Human Law depends upon Divine: See Stephen's Commentaries, p. 22.3. (b) Municipal Law, derived from municipium, a Borough town, ought more correctly to be confined to Borough Law, in which sense it is frequently used; but custom has so thoroughly identified the term with National Law, that it might be thought pedantic to object to it. is (c) Blackstone, p. 44. Observe also the various members of this definition; 1st, that Law a rule," 2nd, of civil conduct; 3rd, prescribed; 4th, by the Supreme power in a State. And read his observations upon each clause of his definition. reduced to writing. The Law of England consists partly of written, partly of unwritten rules. § 7. The written rules are those which have been reduced to writing by the Legislature, and constitute the Statute Law. § 8. The Unwritten Law consists of the Common Law, and Equity.(d) § 9. In one sense a great portion of the Common Law may now be said to be "written;" for it is to be found in the printed records of the various decisions of the Courts, under the name of Reports: which, as a general rule, are authoritative precedents in subsequent similar or analagous cases. But in these decisions the Judge does not make the law, he only declares what the law is. From the necessity of things, the rules of the Common Law must be general; and would often be productive of great hardship to the subject, were they not liable to be tempered by Equity, which has been defined "the correction of that wherein the law by reason of its universality is deficient."(e) § 10. We must make one further division before we come to our immediate subject. Municipal Law may be divided into Substantive and Adjective. § 11. Every individual law, properly constituted, consists of two parts, one of which is substantive, the other adjective. The substantive either declares what the law was before, or commands what it shall be for the future; and hence is classified either as Declaratory or Mandatory: but if legislation stopped short here, it is manifest that the law would be imperfect, if not powerless; as for instance, if it were to be declared, that he who killed another feloniously and maliciously, should be deemed guilty of murder. Clearly it is necessary to annex the consequences of the act: and this is adjective to the other branch: for instance, that the murderer shall be hanged. The adjective portion of a law is either preventive or remedial, according as its object is to intercept an act before it is committed, or to correct or make amends for its consequences after commission. Where the law seeks to operate through prevention, it does so through the medium of either force or fear. Of the first, provisions for securing danger (d) I do not allude to the Civil and Ecclesiastical Law, the Military, and Maritime Law, or the Law of the Universities, because though tolerated, they derive their authority from the Common Law of England, and are, as Blackstone calls them, leges sub graviori lege. (e) This definition has been copied from writer to writer. Plowden takes it from Cicero, and Cicero from Aristotle. ous people, as lunatics; or brutes, as ferocious dogs; are instances. Of the latter all punishment, which has for its end not only the correction of the individual, but the warning of all members of a community by example, is an instance. Injunction is another example. When the law seeks to operate remedially, it does so either by Restoration or Compensation. As an instance of the first, take the case where a specific chattel is directed to be delivered up; as an instance of the second, the ordinary case of damages, where the specific chattel has been destroyed, or contract cannot be performed, or injury can only be pecuniarily made up for. § 12. But it is not in this sense that the present division is to be applied. It will be perceived that we have been considering the various classes of a law: we must divide all Municipal Law into substantive and adjective. § 13. The former will include all rules prescribing lines of civil conduct the latter, those which are laid down in order to enable the administrators of justice to apply the former in practice. Such are Laws of Procedure, Pleadings, and Evidence. § 14. The Law of Procedure, is that whereby the conduct of trials, from the summons of the party to final execution of Judgment, is regulated. § 15. The object of Pleadings(f) is to instruct the Judge as to the points in dispute which he is called upon to try, and to reduce the dispute to its narrowest limits. (9) § 16. The object of Evidence must be considered somewhat more at (f) The Law of Evidence can scarcely be thoroughly understood without a knowledge of the principles of pleading, whereby the several issues are raised, the points not in dispute thrown off, and often times admissions made which supersede the necessity of proof. In England the parties are left to raise their own issues. Under the Roman Law, the Magistrate did this for the parties. According to the Mofussil practice, the task is the joint work of the Judge and the parties: the parties first detailing their respective stories, and the Judge then determining what are the "points" to which evidence is to be adduced. A separate course of Lectures should be devoted to pleading; for the present we must assume that the issues are raised, at which point the Law of Evidence strikes in. Pleadings are now regulated by the Civil Procedure Code (Act VIII. of 1859) which together with Mr. Macpherson's work on the Code must be referred to for information on this subject. Act X. of 1861, (Repealing Act) repeals the former statutary provisions on this subject. It does not however repeal Regulation XIV. of 1816, Section IX., as to impertinence or irregularity. Practically, all Procedure will be governed by the new Code. (g) Thus if A sue B for land which he alleges B deprived him of fourteen years since, B may answer that the claim is barred by the Regulation of Limitations. A replies that his right has been acknowledged by B within the last 12 years. B might rejoin that it had not been so acknowledged, which would be the only issue to be tried. This would be an issue of fact. Or suppose a similar case in the Supreme Court, B might reply that the acknowledgment was not in writing. This would be an issue of law (dependant, it is true, upon the substantiation of the fact)-but would still be the only issue to be tried. large. Let us suppose that a Judge is called upon to try a charge of murder. Now he knows the Substantive Law, that if A feloniously and maliciously kill B, A is guilty of murder. He knows too that the penalty for this crime is death. But these are general abstract propositions. Before he can apply the Substantive Law to the case before him, he must be satisfied that the Facts are such as to warrant its application. In other words, that the murder has been committed by the party charged. This is to be done by Investigation. § 17. In England the Jury are sole Judges of the facts. § 18. In India, except in criminal trials before the High Courts on their original side, and in trials before the Sessions Court with a Jury under the Criminal Procedure Code, Ch. XXIII., at which a Jury is empannelled, the Judges are Judges both of law and fact. So in Mussadee Mahomed Cajum Sheerajee v. Meerza Ally Mahomed Sooshy, (h) it was held, that as by the constitution of the Supreme Courts the Judges sit as Judges and Jury on the civil side, the same weight is to be given to their Judgment as to a verdict in England, when the Judge who tried the cause is not dissatisfied with the verdict. (i) The Native Law Officers who used to attend at civil trials to expound the law are abolished by Act XI. of 1864. Under the Criminal Procedure Code, Sec. 324, the Judge may appoint assessors to assist him; but he is not bound by their opinions. By the Criminal Procedure Code, Ch. XXIII., trial by Jury is provided for. Owing to the change which has taken place in the conditions of the country, this enactment will probably be more successful than the old Jury Regulation X. of 1827, which from the commencement was a dead letter. With these exceptions it may be stated as a general proposition, that Judges in India practically decide all questions of fact. (h) 6, Moore's I. A. p. 27. (i) One result of this is to render it often difficult to judge on the propriety of appealing from an original decision; because it is not always easy to ascertain where the source of error lies, whether with regard to law or fact. In the case cited in the text, it is laid down that the Court of Appeal will not distrust the Judgment of a Court in India upon a question of credibility of witnesses, unless it is manifestly clear from the probabilities attached to certain circumstances in the case, that the Court below was wrong in the conclusion drawn from such Evidence. This principle should govern all Courts of Appeal. It will be found amply illustratated in the Reports of Appeals to the Privy Council. See Santa Anna v. Cadoval 1. Knapp 269: per Sir J. Leach. Canessa v. Larios 2. Kn. 271 per Ld Wynford. Mussadu Mahomed C. Shevajee v. Musa M. A. Khan. 8 Moore's I. A. 112. per Ld. Kingsdown. See also Dhurm Das Pandry v. Musumal Shama Soondri Dibiah 3 M. I. A. page 239. Goperkist Gosain v. Gungapasaud Gosain, 6 M. I. A. page 30, Rajah Bomraz Bahadur v. Rungasawmy Moodelly, ib., page 249. Macpherson's P. C. Practice, page 174, and Norton's Topics of Jurisprudence, p. 61. |