EXPLANATION OF HEARSAY.

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CHAPTER VII.

OF HEARSAY.

§383. As evidence afforded by our Own senses is seldom attainable in judicial trials, the law is satisfied with requiring the next best evidence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy; for this may not be proveable by direct testimony, but only by inference from other facts shown to exist. But it is requisite, that, whatever facts the witness may speak to, he should be confined to those lying within his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is deemed indispensable to the proper administration of justice, first, that every witness should give his testimony under the sanction of an oath, or, its equivalent, a solemn affirmation,—and, secondly, that he should be subject to the ordeal of a cross-examination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to these tests; for as Mr. Justice Buller observes, "If the first speech were without oath, another oath that there was such speech, makes it no more than a mere speaking, and so of no value in a court of justice "(a); besides, it is often impossible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this, which constitutes that sort of second-hand evidence, termed hearsay; a species of proof which,

(a) B. N. P. 294, b.

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HEARSAY INADMISSIBLE.

with a few exceptions that will be presently noticed, cannot be received in judicial investigations (b).

§ 384. So strict is this rule of exclusion, which has been recognised as a fundamental principle of the law of evidence ever since the time of Charles the Second (c), that it even applies where, if the declaration be rejected, no other evidence can possibly be obtained; as, for example, if it purports to be the declaration of the only eyewitness of the transaction, and he is since dead (d). So, it has several times been held, where prisoners have been indicted for ravishing children, who were too young to comprehend the nature of an oath, that statements made by the children to their mothers shortly after the offence was committed, could not be received in evidence (e). So, also, a declaration, though made on oath, and in the course of a judicial proceeding, cannot be received, if the litigating parties are not the

(b) The rule excluding hearsay evidence, or rather the mode in which that rule is frequently misunderstood in courts of justice, is amusingly caricatured by Mr. Dickens in his report of the case of Bardell v. Pickwick, p. 367 :—

"I believe you are in the service of Mr. Pickwick, the defendant in this case. Speak up if you please, Mr. Weller.'

"I mean to speak up, sir,' replied Sam. 'I am in the service o' that 'ere gen'l'man, and wery good service it is.'

"Little to do, and plenty to get, I suppose?' said Serjeant Buzfuz, with jocularity.

"Oh quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes,' replied Sam.

"You must not tell us what the soldier, or any other man, said, sir,' interposed the judge, 'it's not evidence.'

"Wery good, my Lord,' replied Sam.'

(c) One of the earliest cases in which the rule was acted upon, is Sampson v. Yardley, 2 Keb. 223, Pl. 74, 19 Car. 2.

(d) 1 Ph. Ev. 209. In Scotland the rule is otherwise; evidence on the relation of others being admitted, where the relator is since dead, and would, if living, have been a competent witness. And if the relation has been handed down to the witness at second hand, and through several successive relators, each only stating what he received from the intermediate relator, it is still admissible, if the original and intermediate relators are all dead, and would have been competent witnesses if living.-Tait, Ev. 430, 431. But the reason for receiving hearsay evidence in cases where, as is often the case in Scotland, the judges determine upon the facts in dispute, as well as upon the law, is stated and vindicated by Sir James Mansfield, in the Berkeley Peerage case, 4 Camp. 415. It is observable, that, according to the practice of the English courts, hearsay evidence is often admitted and acted upon in affidavits, which are submitted to the judges only.

(e) R. v. Brasier, 1 Lea. 199; 1 East, P. C. 443, S. C.; R. v. Nicholas, 2 C. & Kir. 246, per Pollock, C. B.

HEARSAY INADMISSIBLE.

365

same; because, in such case, the party against whom the evidence is offered, has had no opportunity of cross-examining the declarant. Thus, the deposition of a pauper, as to the place of his settlement, taken ex parte before a magistrate, will be rejected, though the pauper himself has since absconded or died (e). Even the declarations of a deceased subscribing witness to a deed or will, in disparagement of the evidence afforded by his signature, will be excluded. In the case of Stobart v. Dryden (f), the admissibility of such declarations was strenuously urged on two grounds; first, that as the party offering the deed used the declaration of the witness, evidenced by his signature, to prove the execution, the other party might well be permitted to use any other declaration of the same witness, to disprove it; and, secondly, that such declaration was in the nature of a substitute for the loss of the benefit of a cross-examination of the subscribing witness; by which either the fact confessed would have been proved, or the witness might have been contradicted, and his credit impeached. Both these grounds were overruled by the Court of Exchequer; the first, because the evidence of the handwriting, in the attestation, is not used as a declaration by the witness, but is offered merely to show the fact, that he put his name there, in the manner in which attestations are usually placed to genuine signatures; and the second, chiefly because of the mischiefs which would ensue, if the general rule excluding hearsay were thus broken in upon. For the security of solemn instruments would thereby become much impaired, and the rights of parties under them would be liable to be affected at remote periods by loose declarations of the attesting witnesses, which could neither be explained, nor contradicted, by the testimony of the witnesses themselves. In admitting such declarations, too, there would be no reciprocity; for although the party impeaching the instrument would thereby have an equivalent for the loss of his power of cross-examination of the living witness, the other party would have none for the loss of his power of re-examination.

(e) R. v. Nuneham Courtney, 1 East, 373; R. v. Ferry Frystone, 2 East, 54; R. v. Abergwilly, id. 63; Mima Queen v. Hepburn, 7 Cranch, 296. This rule does not apply to soldiers and marines; see ante, § 358.

(f) 1 M. & W. 615, 623, 624, 627.

366

RULE EXCLUDING HEARSAY SOMETIMES INCONVENIENT.

§ 385. The term hearsay is used with reference to what is done or written, as well as to what is spoken; and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but rests also, in part, on the veracity and competence of some other person (g). That this species of evidence is not given upon oath, that it cannot be tested by cross-examination, and that it supposes some better testimony, which might be adduced in the particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness (h), its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised with impunity under its cover, combine to support the rule that hearsay evidence is inadmissible (i).

§ 386. It cannot, however, be denied, that the rule excluding hearsay evidence, though, in general, admirably calculated for trials before popular tribunals, may, in many instances, work considerable injustice. For example, on a question respecting the competency of a testator, the conduct of his family or relations taking the same precautions in his absence as if he were a lunatic; or his election in his absence to some high and responsible office; or the conduct of a physician who permitted him to execute a will; all these are, with reference to the matter in issue, mere instances of hearsay evidence, mere statements expressed in the language of conduct instead of the language of words, and are therefore inadmissible in a court of justice, although, in the ordinary transactions of life, they would deservedly be considered as cogent moral evidence (j). So, on a question of seaworthiness, the conduct of a deceased captain, who, after examining every part of the vessel, embarked in it with his family,-or, on a question respecting the

(g) 1 Ph. Ev. 185.

(h) "Pluris est oculatus testis unus, quam auriti decem;

Qui audiunt, audita dicunt, qui vident planè sciunt."

PLAUT. Trucu. Act 2, sc. 6, 1. 8, 9.

(i) Per Marshall C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296; Davis v. Wood, 1 Wheat. 6, 8; R. v. Eriswell, 3 T. R. 707.

(j) Wright v. Doe d. Tatham, 7 A. & E. 388, per Parke, B.; 4 Bing. N. C. 547, per Vaughan, J.

DOE DEM. TATHAM V. WRIGHT.

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loss of insured property, the payment by other underwriters on the same policy (j),-cannot be received. On the same ground the fact that, after the issuing of a fiat, certain creditors of the bankrupt returned to his assignees goods which they had received from the bankrupt before he delivered other goods to the defendant, was, in an action of trover brought by the assignees, held inadmissible, as proof that an act of bankruptcy had been committed prior to the time when the goods came into the hands of the defendant (k); and, not to multiply instances, where a servant was indicted for perjury, in saying that her deceased mistress had never had a child, declarations of the mistress were rejected as evidence for the Crown (7), although, in an action of ejectment, where the same question was in issue, and the words charged as perjury were uttered, such evidence was admitted, as relating to a matter of pedigree (m).

§ 387. In most of the instances given above, as illustrating the occasional inconvenience of the rule, the evidence rejected amounted to something more than the mere declarations of parties not examined on oath, nor subjected to cross-examination; for these declarations were accompanied by acts done in confirmation of their sincerity, and as such, the evidence was, morally speaking, entitled to great weight. The law, however, will not on this account allow any exception to be made in favour of hearsay; for although, if an act done be evidence per se, any declarations accompanying that act are, as we shall presently see, admissible for the purpose of illustrating, qualifying, or completing it; yet if the act be in its own nature irrelevant to the issue, and the declaration be inadmissible, the union of the two cannot render them evidence (n). This question was much discussed in the great case of Doe d. Tatham v. Wright (o), where the title to the property in dispute depended upon the competency of Mr. Marsden to make a will. The cause was tried four times, and as often debated

(j) 7 A. & E.387,388. (4) Backhouse v. Jones, 6 Bing. N. C. 65; 8 Scott, 148, S. C. (7) Heath's case, 18 How. St. Tr. 68, 76.

(m) Annesley v. E. of Anglesea, 17 How. St. Tr. 1175, 1188.

(n) 7 A. & E. 361; 4 Bing. N. C. 498.

(0) See 2 Russ. & Myl. 1; 1 A. & E. 3; 3 N. & M. 260; 7 A. & E. 313; 6 N. & M. 132; 4 Bing. N. C. 489, S. C.