"On the other hand, in some instances, instead of such conformity, disconformity is the result presented by the surer guide, perception; hence, the disposition to disbelief.

"The number of the instances in which, to a degree sufficient for practice, this conformity is found to have place, is greatly superior to the number of the instances in which it is found to fail. Hence, the cases of belief constitute the general rule-the ordinary state of a man's mind; the cases of disbelief constitute so many cases of exception; and to produce disbelief requires some particular assignable consideration, operating in the character of a special cause.

"The disposition or propensity to belief may, in this sense, be said to be stronger than the disposition, the propensity, to belief. Where the proposition reversed, the business of society could not be carried on : society itself conld not have had existence. For the facts which fall under the perception of any given individual are in number but as a drop of water in the bucket, compared with those concerning existence of which it is impossible for him to obtain any persuasion otherwise than from the reports, the assertions, made by other men."

PART I.

EVIDENCE AS TO PRINCIPLES.

CHAPTER II.

PRINCIPLES CONSIDERED GENERALLY.

§ 25. Is there then any distinction between Legal and other Evidence? It may in the first place be laid down generally that the principles of Legal Evidence are the same as those which an educated man of ordinary understanding would act upon on enquiring into the truth of any investigation in every-day life.

§ 26. But inasmuch as there is less inducement to deceive in ordinary matters, than in legal investigations, in which the parties have their interests at stake, and inasmuch as the despatch of public business forbids unlimited time being devoted to any one enquiry, it is expedient and convenient not to go into all that we might have an in

clination to enquire into the private matters of life.(r) The principles are such as a prudent father of a family would use in investigating a domestic dispute; the only proper limits of exclusion in legal enquiries are Vexation, Expense, Delay. Instances may easily be imagined, and constantly occur in practice, in which notwithstanding it might be desirable to adduce a particular piece of evidence before coming to a decision, yet a consideration of the vexation, expense, or delay attending its production, necessitates a decision without it; and on the whole the balance of public convenience, as well as justice, will be found in favor of acting upon general rules, not making exceptions on account of supposed cases of particular hardship. As it has been repeatedly said, and by Rolfe, B. in Winterbottom, v. Wight,(s) "Hard cases make bad law." We are here speaking of the limits of exclusion; not of the causes, chief among which is the rule lying at the very root of the Law of Evidence, that the best evidence which the case admits of must be produced.

§ 27. Where none of these preventive obstacles presents itself, a wisely constructed Law of Evidence will strive to admit everything which can throw light upon the subject under investigation. It is thus that minutiæ become distinct; just as the microscope, when the light is most intense, reveals animalculæ imperceptible to the naked eye. The Judge should have the benefit of the fullest possible body of light. Suppose you were about to set out on a journey along a road untried before, to some point which you had never previously visited, I presume that you would prefer accomplishing it by day rather than by night; or if you were forced by circumstances to undertake it by night, you would rather have a full moon, or star

(r) Nothing more tends to fix principles in the mind of the Student than their connexion with a Law maxim, and I shall therefore introduce legal maxims wherever apposite: "Interest reipublicæ ut sit finis litium." "Ne lites immortales essent dum litigantes mortales sunt" are formulæ expressing this necessity of placing limits to the production of evidence. See Per. Rolfe B. (Lord Cranworth, Chancellor) in Att. Genl. v. Hitchcock. XI. Jur. 482. "The Laws of Evidence as to what is receivable or not are founded on a compound consideration of what abstractedly considered is calculated to throw light on the subject in dispute, and of what is practicable. Perhaps if we lived to the age of a thousand years instead of sixty or seventy, it might throw light on any subject that came into dispute, if all matters which could by possibility affect it, were severally gone into, and enquiries carried on from month to month as to the truth of every thing connected with it. I do not say how that would be, but such a course is found to be impossible at present." Maxims are in fact recognized as part of the material for forming a judgment. See Co. Litt 11a., 67a, 343a, 648. Doct. and Stu. Dial. 1 ch. 8, says this authority, "standeth in divers principles that be called law maxims, the which have always been taken for law in this realm, so that it is not lawful for any "that is learned to deny them, for every one of those maxims is sufficient authority to himself."

(8) 10 M. and W. 116.

light, or torch-light, than total darkness? Yet this is very analogous to a judicial investigation.

Until a comparatively recent date the Law excluded much light, which might usefully and legitimately have been admitted, but for a prejudice, a jealousy, and an over-caution, which were exercised to preclude what was thought the opening, the chance, or possibility of error.

§ 28. Thus the parties disputant(t) were not to be themselves heard, because it was thought they would be so necessarily biased, that they would be little worthy of credit, and that the temptation to perjury would be, if not irresistable, very dangerous. Thus too the testimony of any one, offered by the parties, as a witness, who was pecuniarily interested() in the matter in dispute, was peremptorily excluded: a practice which involved this absurdity, that the evidence of a man with the wealth of Sir Jamsetjee Jejeebhoy would be rejected, if he were shown to be interested even to the extent of a single rupee in the suit at issue. To such a man, the temptation thereby offered to swerve from the truth would be as nothing; yet the rule, stern as the bed of Procrustes, was equally fitted to him, and to a pauper to whom the same sum might be sufficient to make him a "bazaar witness." And again, pecuniary interest was the only test applied; as though there might not exist interest of other qualities far more likely to exercise a disturbing influence upon the deponent's testimony. Sir Jamsetjee might be excluded on account of a single rupee; but the father of a girl infamously seduced, while smarting under the sense of injury done his child, might be a perfectly admissible witness against the seducer. Thus again, the evidence of those who had been convicted of an infamous crime(w) was irreceivable: and their inability to give evidence appears to have been considered a portion of their punishment; but it may well be questioned, whether the punishment did not equally or far more affect the innocent

(t) See Legislative Act II. of 1855. Sec XIX., 14 and 15 Vic., c. 95. Civil Procedure Code VIII. of 1859, Act X. of 1861 and Act XXIII. of 1861. In England there was long reserved the exception of parties to any action for criminal conversation or breach of promise of marriage and parties to any suit instituted by reason of adultery in the Ecclesiastical Court (now the Court of Divorce and Matrimonial causes.) The hardship of this was recent. ly exhibited in the case of Codrington v. Codrington and Anderson. The Indian Evidence Act contains no such exception. By the Indian Divorce Act of 1868 § 52, the parties are admissible witnesses as to cruelty or Desertion. A similar provision has lately been passed in England.

(v) See Legislative Act II. of 1855. Sec XVII., 3 and 4 Will. IV., c. 42, s. 26; 6 and 7 Vic., c. 85 (Lord Denman's Act.) (Lord Brougham's) Act 14 and 15 Vic., c. 99, as to County Court, 8, 9 and 10 Vic., c. 95, Sec. 83.

(w) See 6 and 7 Vic., c. 35. See as to the Supreme Court's Legislative Act XV. of 1852. See also Legislative Act II of 1855. Sec. XXXII, and Act XIX. of 1837.

party who stood in need of the testimony; while as to any exclusion on the ground of such a person being unworthy of belief, it is evident that this is an objection rather to the credibility, than to the admissibility of the witness; just as it is in the case of parties, or their interested witnesses. It is for the Judge rather to weigh well all the conditions under which such a witness gives his evidence, than summarily to refuse to hear him. A due respect being had to the previous or present character of the person tendering his testimony, such testimony may be entitled to any degree of belief from zero up to proof positive.

§ 29. Accordingly, the tendency of modern legislation (2) has been to remove the objections under the old law; to open the witness box to all such comers, and to leave the degree of credit which they respectively deserve to the acumen and experience of the Judge.

§ 30. There are however certain other classes whose exclusion stands upon more tenable grounds. The Hindu Law indeed capriciously excludes the testimony of lepers and outcasts; the Mahomedan Law will not listen to a female: In the Roman Law, though perhaps no class of witnesses was entirely excluded, yet certain were not to be had recourse to if others could be forthcoming. Thus a man convicted "judicii publici," the "calumniæ damnatus," and the "arenarius testis" (one who had hired himself out to fight with wild beasts) were excluded propter ignominiam vitæ: In Cocci v. Cocci, Testes lupanares were excluded, and when such evidence was received, it was only to be relied on, if the deponent was first submitted to torture! According to the Canon Law, madmen, idiots, infants, slaves, perjurers, infamous, excommunicated persons, parties accused of crimes though not condemned, were irreceivable as witnesses, except in the grave crimes, such as simony, and 'lese-majesty; in which even infamous persons' testimony was receivable. By the Law of Jersey, enmity excludes (Janvrin v. Delamare, 9 W. R. p. 623) Women could not testify in criminal cases except in graver cases, as above, and where there was no better means of establishing the truth. Friends might not depose on behalf of each other. Let us not therefore accuse the Hindoos of capriciousness. But it is apparent that there are reasonable grounds for the exclusion of certain classes. If an oath or its equivalent is a necessary preliminary sanction to the delivery of evidence, it follows that a person

(x) See the Acts quoted in § 28 and see also the Bengal Act XIX. of 1853.

14

DIRECT AND INDIRECT TESTIMONY.

EXCLUDING TESTS. [ CHAP. II.

totally deficient in religious belief must be unqualified; (but see post § 47, note g) and defect of understanding, as in the case of idiotcy, is obviously a proper ground for refusing the testimony of those so afflicted. To the development of the subject of these two sections we shall return at large hereafter.

§ 31. Such are some of the principle obstacles which an enlightened spirit of legislation has, in late years, removed from the path of the Judge seeking to investigate the truth of the facts before him.

or

§ 32. It can rarely happen that a Judge can have himself seen, had actual knowledge of, the matter in dispute. It may happen;. as when a Magistrate arrests a person committing any affray or felony in his presence: but generally speaking, he must be ignorant of the circumstances of the contention. How would he act, if he was a man transacting the daily affairs of life? Not having seen. the matter himself; after examining the parties, he would first ask to have before him those who had themselves seen what happened, and ascertain from them what they had seen. If he could find none such, he might naturally, perhaps resasonably, listen to what others, not themselves present, had heard from those who were present. Failing this last class, he would, thirdly, endeavour to find out what circumstances accompanied the transaction, and from them draw his own conclusions.

§ 33. The first class, that of witnesses who spoke from the experience of their actual bodily senses, eye witnesses, is called immediate.

§ 34. The second class, those namely, who merely give as their evidence derivatively, and not originally, what they have heard from others, is mediate.

§ 35. Both of these classes are however comprised under the head of Direct Testimony.

§ 36. The third class is called Indirect.

§ 37. It will be seen that we are here classifying the kinds of evidence, which is necessary so far, for our present purpose: the further consideration of this topic must however be postponed for the present, lest it should interfere with our immediate subject, the principles of evidence.