Chapter IV: Act 1851: made parties to legal proceedings admissible witnesses subject (1)

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."

Literature.

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 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.

Rules.

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 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.

I. PRELIMINARY MATTER

Under this head may be grouped certain principles and considerations which limit the range of matters to which evidence relates.

1. _Law and Fact._--Evidence relates only to facts. It is therefore necessary to touch on the distinction between law and facts. _Ad quaestionem facti non respondent judices; ad quaestionem juris non respondent juratores._ Thus Coke, attributing, after his wont, to Bracton a maxim which may have been invented by himself. The maxim became the subject of political controversy, and the two rival views are represented by Pulteney's lines--

"For twelve honest men have decided the cause
Who are judges alike of the facts and the laws,"

and by Lord Mansfield's variant--

"Who are judges of facts, but not judges of laws."

The particular question raised with respect to the law of libel was settled by Fox's Libel Act 1792. Coke's maxim describes in a broad general way the distinction between the functions of the judge and of the jury, but is only true subject to important qualifications. Judges in jury cases constantly decide what may be properly called questions of fact, though their action is often disguised by the language applied or the procedure employed. Juries, in giving a general verdict, often practically take the law into their own hands. The border-line between the two classes of questions is indicated by the "mixed questions of law and fact," to use a common phrase, which arise in such cases as those relating to "necessaries," "due diligence," "negligence," "reasonableness," "reasonable and probable cause." In the treatment of these cases the line has been drawn differently at different times, and two conflicting tendencies are discernible. On the one hand, there is the natural tendency to generalize common inferences into legal rules, and to fix legal standards of duty. On the other hand, there is the sound instinct that it is a mistake to define and refine too much in these cases, and that the better course is to leave broadly to the jury, under the general guidance of the judge, the question what would be done by the "reasonable" or "prudent" man in particular cases. The latter tendency predominates in modern English law, and is reflected by the enactments in the recent acts codifying the law on bills of exchange and sale of goods, that certain questions of reasonableness are to be treated as questions of fact. On the same ground rests the dislike to limit the right of a jury to give a general verdict in criminal cases. Questions of custom begin by being questions of fact, but as the custom obtains general recognition it becomes law. Many of the rules of the English mercantile law were "found" as customs by Lord Mansfield's special juries. Generally, it must be remembered that the jury act in subordinate co-operation with the judge, and that the extent to which the judge limits or encroaches on the province of the jury is apt to depend on the personal idiosyncrasy of the judge.

2. _Judicial Notice._--It may be doubted whether the subject of judicial notice belongs properly to the law of evidence, and whether it does not belong rather to the general topic of legal or judicial reasoning. Matters which are the subject of judicial notice are part of the equipment of the judicial mind. It would be absurd to require evidence of every fact; many facts must be assumed to be known. The judge, like the juryman, is supposed to bring with him to the consideration of the question which he has to try common sense, a general knowledge of human nature and the ways of the world, and also knowledge of things that "everybody is supposed to know." Of such matters judicial notice is said to be taken. But the range of general knowledge is indefinite, and the range of judicial notice has, for reasons of convenience, been fixed or extended, both by rulings of the judges and by numerous enactments of the legislature. It would be impossible to enumerate here the matters of which judicial notice must or may be taken. These are to be found in the text-books. For present purposes it must suffice to say that they include not only matters of fact of common and certain knowledge, but the law and practice of the courts, and many matters connected with the government of the country.

3. _Presumptions._--A presumption in the ordinary sense is an inference. It is an argument, based on observation, that what has happened in some cases will probably happen in others of the like nature. The subject of presumptions, so far as they are mere inferences or arguments, belongs, not to the law of evidence, or to law at all, but to rules of reasoning. But a legal presumption, or, as it is sometimes called, a presumption of law, as distinguished from a presumption of fact, is something more. It may be described, in Stephen's language, as "a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth" (perhaps it would be better to say 'soundness') "of the inference is disproved." Courts and legislatures have laid down such rules on grounds of public policy or general convenience, and the rules have then to be observed as rules of positive law, not merely used as part of the ordinary process of reasoning or argument. Some so-called presumptions are rules of substantive law under a disguise. To this class appear to belong "conclusive presumptions of law," such as the common-law presumption that a child under seven years of age cannot commit a felony. So again the presumption that every one knows the law is merely an awkward way of saying that ignorance of the law is not a legal excuse for breaking it. Of true legal presumptions, the majority may be dealt with most appropriately under different branches of the substantive law, such as the law of crime, of property, or of contract, and accordingly Stephen has included in his _Digest of the Law of Evidence_ only some which are common to more than one branch of the law. The effect of a presumption is to impute to certain facts or groups of facts a prima facie significance or operation, and thus, in legal proceedings, to throw upon the party against whom it works the duty of bringing forward evidence to meet it. Accordingly the subject of presumptions is intimately connected with the subject of the burden of proof, and the same legal rule may be expressed in different forms, either as throwing the advantage of a presumption on one side, or as throwing the burden of proof on the other. Thus the rule in Stephen's Digest, which says that the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, appears in the article entitled "Presumption of Innocence." Among the more ordinary and more important legal presumptions are the presumption of regularity in proceedings, described generally as a presumption _omnia esse rite acta_, and including the presumption that the holder of a public office has been duly appointed, and has duly performed his official duties, the presumption of the legitimacy of a child born during the mother's marriage, or within the period of gestation after her husband's death, and the presumptions as to life and death. "A person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it. There is no presumption" (i.e. legal presumption) "as to the age at which a person died who is shown to have been alive at a given time, or as to the order in which two or more persons died who are shown to have died in the same accident, shipwreck or battle" (Stephen, _Dig._, art. 99). A document proved or purporting to be thirty years old is presumed to be genuine, and to have been properly executed and (if necessary) attested if produced from the proper custody. And the legal presumption of a "lost grant," i.e. the presumption that a right or alleged right which has been long enjoyed without interruption had a legal origin, still survives in addition to the common law and statutory rules of prescription.

4. _Burden of Proof._--The expression _onus probandi_ has come down from the classical Roman law, and both it and the Roman maxims, _Agenti incumbit probatio_, _Necessitas probandi incumbit ei qui dicit non ei qui negat_, and _Reus excipiendo fit actor_, must be read with reference to the Roman system of actions, under which nothing was admitted, but the plaintiff's case was tried first; then, unless that failed, the defendant's on his _exceptio_; then, unless that failed, the plaintiff's on his _replicatio_, and so on. Under such a system the burden was always on the "actor." In modern law the phrase "burden of proof" may mean one of two things, which are often confused--the burden of establishing the proposition or issue on which the case depends, and the burden of producing evidence on any particular point either at the beginning or at a later stage of the case. The burden in the former sense ordinarily rests on the plaintiff or prosecutor. The burden in the latter sense, that of going forward with evidence on a particular point, may shift from side to side as the case proceeds. The general rule is that he who alleges a fact must prove it, whether the allegation is couched in affirmative or negative terms. But this rule is subject to the effect of presumptions in particular cases, to the principle that in considering the amount of evidence necessary to shift the burden of proof regard must be had to the opportunities of knowledge possessed by the parties respectively, and to the express provisions of statutes directing where the burden of proof is to lie in particular cases. Thus many statutes expressly direct that the proof of lawful excuse or authority, or the absence of fraudulent intent, is to lie on the person charged with an offence. And the Summary Jurisdiction Act 1848 provides that if the information or complaint in summary proceedings negatives any exemption, exception, proviso, or condition in the statute on which it is founded, the prosecutor or complainant need not prove the negative, but the defendant may prove the affirmative in his defence.

II. CLASSES OF EVIDENCE

Evidence is often described as being either oral or documentary. To these two classes should be added a third, called by Bentham real evidence, and consisting of things presented immediately to the senses of the judge or the jury. Thus the judge or jury may go to view any place the sight of which may help to an understanding of the evidence, and may inspect anything sufficiently identified and produced in court as material to the decision. Weapons, clothes and things alleged to have been stolen or damaged are often brought into court for this purpose. Oral evidence consists of the statements of witnesses. Documentary evidence consists of documents submitted to the judge or jury by way of proof. The distinction between primary and secondary evidence relates only to documentary evidence, and will be noticed in the section under that head. A division of evidence from another point of view is that into direct and indirect, or, as it is sometimes called, circumstantial evidence. By direct evidence is meant the statement of a person who saw, or otherwise observed with his senses, the fact in question. By indirect or circumstantial evidence is meant evidence of facts from which the fact in question may be inferred. The difference between direct and indirect evidence is a difference of kind, not of degree, and therefore the rule or maxim as to "best evidence" has no application to it. Juries naturally attach more weight to direct evidence, and in some legal systems it is only this class of evidence which is allowed to have full probative force. In some respects indirect evidence is superior to direct evidence, because, as Paley puts it, "facts cannot lie," whilst witnesses can and do. On the other hand facts often deceive; that is to say, the inferences drawn from them are often erroneous. The circumstances in which crimes are ordinarily committed are such that direct evidence of their commission is usually not obtainable, and when criminality depends on a state of mind, such as intention, that state must necessarily be inferred by means of indirect evidence.

III. RULES OF EXCLUSION

It seems desirable to state the leading rules of exclusion in their crude form instead of obscuring their historical origin by attempting to force them into the shape of precise technical propositions forming parts of a logically connected system. The judges who laid the foundations of our modern law of evidence, like those who first discoursed on the duties of trustees, little dreamt of the elaborate and artificial system which was to be based upon their remarks. The rules will be found, as might be expected, to be vague, to overlap each other, to require much explanation, and to be subject to many exceptions. They may be stated as follows:--(1) Facts not relevant to the issue cannot be admitted as evidence. (2) The evidence produced must be the best obtainable under the circumstances. (3) Hearsay is not evidence. (4) Opinion is not evidence.

1. _Rule of Relevancy._--The so-called rule of relevancy is sometimes stated by text-writers in the form in which it was laid down by Baron Parke in 1837 (_Wright_ v. _Doe and Tatham_, 7 A. and E. 384), when he described "one great principle" in the law of evidence as being that "all facts which are relevant to the issue may be proved." Stated in different forms, the rule has been made by FitzJames Stephen the central point of his theory of evidence. But relevancy, in the proper and natural sense, as we have said, is a matter not of law, but of logic. If Baron Parke's dictum relates to relevancy in its natural sense it is not true; if it relates to relevancy in a narrow and artificial sense, as equivalent to admissible, it is tautological. Such practical importance as the rule of relevancy possesses consists, not in what it includes, but in what it excludes, and for that reason it seems better to state the rule in a negative or exclusive form. But whether the rule is stated in a positive or in a negative form its vagueness is apparent. No precise line can be drawn between "relevant" and "irrelevant" facts. The two classes shade into each other by imperceptible degrees. The broad truth is that the courts have excluded from consideration certain matters which have some bearing on the question to be decided, and which, in that sense, are relevant, and that they have done so on grounds of policy and convenience. Among the matters so excluded are matters which are likely to mislead the jury, or to complicate the case unnecessarily, or which are of slight, remote, or merely conjectural importance. Instances of the classes of matters so excluded can be given, but it seems difficult to refer their exclusion to any more general principle than this. Rules as to evidence of character and conduct appear to fall under this principle. Evidence is not admissible to show that the person who is alleged to have done a thing was of a disposition or character which makes it probable that he would or would not have done it. This rule excludes the biographical accounts of the prisoner which are so familiar in French trials, and is an important principle in English trials. It is subject to three exceptions: first, that evidence of good character is admissible in favour of the prisoner in all criminal cases; secondly, that a prisoner indicted for rape is entitled to call evidence as to the immoral character of the prosecutrix; and thirdly, that a witness may be called to say that he would not believe a previous witness on his oath. The exception allowing the good character of a prisoner to influence the verdict, as distinguished from the sentence, is more humane than logical, and seems to have been at first admitted in capital cases only. The exception in rape cases does not allow evidence to be given of specific acts of immorality with persons other than the prisoner, doubtless on the ground that such evidence would affect the reputations of third parties. Where the character of a person is expressly in issue, as in actions of libel and slander, the rule of exclusion, as stated above, does not apply. Nor does it prevent evidence of bad character from being given in mitigation of damages, where the amount of damages virtually depends on character, as in cases of defamation and seduction. As to conduct there is a similar general rule, that evidence of the conduct of a person on other occasions is not to be used merely for the purpose of showing the likelihood of his having acted in a similar way on a particular occasion. Thus, on a charge of murder, the prosecutor cannot give evidence of the prisoner's conduct to other persons for the purpose of proving a bloodthirsty and murderous disposition. And in a civil case a defendant was not allowed to show that the plaintiff had sold goods on particular terms to other persons for the purpose of proving that he had sold similar goods on the same terms to the defendant. But this general rule must be carefully construed. Where several offences are so connected with each other as to form parts of an entire transaction, evidence of one is admissible as proof of another. Thus, where a prisoner is charged with stealing particular goods from a particular place, evidence may be given that other goods, taken from the same place at the same time, were found in his possession. And where it is proved or admitted that a person did a particular act, and the question is as to his state of mind, that is to say, whether he did the act knowingly, intentionally, fraudulently, or the like, evidence may be given of the commission by him of similar acts on other occasions for the purpose of proving his state of mind on the occasion. This principle is most commonly applied in charges for uttering false documents or base coin, and not uncommonly in charges for false pretences, embezzlement or murder. In proceedings for the receipt or possession of stolen property, the legislature has expressly authorized evidence to be given of the possession by the prisoner of other stolen property, or of his previous conviction of an offence involving fraud or dishonesty (Prevention of Crimes Act 1871). Again, where there is a question whether a person committed an offence, evidence may be given of any fact supplying a motive or constituting preparation for the offence, of any subsequent conduct of the person accused, which is apparently influenced by the commission of the offence, and of any act done by him, or by his authority, in consequence of the offence. Thus, evidence may be given that, after the commission of the alleged offence, the prisoner absconded, or was in possession of the property, or the proceeds of the property, acquired by the offence, or that he attempted to conceal things which were or might have been used in committing the offence, or as to the manner in which he conducted himself when statements were made in his presence and hearing. Statements made to or in the presence of a person charged with an offence are admitted as evidence, not of the facts stated, but of the conduct or demeanour of the person to whom or in whose presence they are made, or of the general character of the transaction of which they form part (under the _res gestae_ rule mentioned below).

2. _Best Evidence Rule._--Statements to the effect of the best evidence rule were often made by Chief Justice Holt about the beginning of the 18th century, and became familiar in the courts. Chief Baron Gilbert, in his book on evidence, which must have been written before 1726, says that "the first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of." And in the great case of _Omichund_ v. _Barker_ (1744), Lord Hardwicke went so far as to say, "The judges and sages of the law have laid down that there is but one general rule of evidence, the best that the nature of the case will admit" (1 Atkyns 49). It is no wonder that a rule thus solemnly stated should have found a prominent place in text-books on the law of evidence. But, apart from its application to documentary evidence, it does not seem to be more than a useful guiding principle which underlies, or may be used in support of, several rules.

It is to documentary evidence that the principle is usually applied, in the form of the narrower rule excluding, subject to exceptions, secondary evidence of the contents of a document where primary evidence is obtainable. In this form the rule is a rule of exclusion, but may be most conveniently dealt with in connexion with the special subject of documentary evidence. As noticed above, the general rule does not apply to the difference between direct and indirect evidence. And, doubtless on account of its vague character, it finds no place in Stephen's Digest.

3. _Hearsay._--The term "hearsay" primarily applies to what a witness has heard another person say in respect to a fact in dispute. But it is extended to any statement, whether reduced to writing or not, which is brought before the court, not by the author of the statement, but by a person to whose knowledge the statement has been brought. Thus the hearsay rule excludes statements, oral or written, made in the first instance by a person who is not called as a witness in the case. Historically this rule may be traced to the time when the functions of the witnesses were first distinguished from the functions of the jury, and when the witnesses were required by their formula to testify _de visu suo et auditu_, to state what they knew about facts from the direct evidence of their senses, not from the information of others. The rule excludes statements the effect of which is liable to be altered by the narrator, and which purport to have been made by persons who did not necessarily speak under the sanction of an oath, and whose accuracy or veracity is not tested by cross-examination. It is therefore of practical utility in shutting out many loose statements and much irresponsible gossip. On the other hand, it excludes statements which are of some value as evidence, and may indeed be the only available evidence. Thus, a statement has been excluded as hearsay, even though it can be proved that the author of the statement made it on oath, or that it was against his interest when he made it, or that he is prevented by insanity or other illness from giving evidence himself, or that he has left the country and disappeared, or that he is dead.