Chapter V: Act 1851: made parties to legal proceedings admissible witnesses subject (2)

Owing to the inconveniences which would be caused by a strict
application of the rule, it has been so much eaten into by exceptions
that some persons doubt whether the rule and the exceptions ought not
to change places. Among the exceptions the following may be noticed:
(a) _Certain sworn statements_.--In many cases statements made by a
person whose evidence is material, but who cannot come before the
court, or could not come before it without serious difficulty, delay
or expense, may be admitted as evidence under proper safeguards. Under
the Indictable Offences Act 1848, where a person has made a deposition
before a justice at a preliminary inquiry into an offence, his
deposition may be read in evidence on proof that the deponent is dead,
or too ill to travel, that the deposition was taken in the presence of
the accused person, and that the accused then had a full opportunity
of cross-examining the deponent. The deposition must appear to be
signed by the justice before whom it purports to have been taken.
Depositions taken before a coroner are admissible under the same
principle. And the principle probably extends to cases where the
deponent is insane, or kept away by the person accused. There are
other statutory provisions for the admission of depositions, as in the
Criminal Law Amendment Act 1867; the Foreign Jurisdiction Act 1890;
and the Children Act 1908, incorporating an act of 1894. In civil
cases the rule excluding statements not made in court at the trial is
much less strictly applied. Frequent use is made of evidence taken
before an examiner, or under a commission. Affidavits are freely used
for subordinate issues or under an arrangement between the parties,
and leave may be given to use evidence taken in other proceedings. The
old chancery practice, under which evidence, both at the trial and at
other stages of a proceeding, was normally taken by affidavit,
irrespectively of consent, was altered by the Judicature Acts. Under
the existing rules of the supreme court evidence may be given by
affidavit upon any motion, petition or summons, but the court or a
judge may, on the application of either party, order the attendance
for cross-examination of the person making the affidavit. (b) _Dying
declarations._--In a trial for murder or manslaughter a declaration by
the person killed as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, is
admissible as evidence. But this exception is very strictly construed.
It must be proved that the declarant, at the time of making the
declaration, was in actual danger of death, and had given up all hope
of recovery. (c) _Statements in pedigree cases._--On a question of
pedigree the statement of a deceased person, whether based on his own
personal knowledge or on family tradition, is admissible as evidence,
if it is proved that the person who made the statement was related to
the person about whose family relations the statement was made, and
that the statement was made before the question with respect to which
the evidence is required had arisen. (d) _Statements as to matters of
public or general interest._--Statements by deceased persons are
admissible as evidence of reputation or general belief in questions
relating to the existence of any public or general right or custom, or
matter of public and general interest. Statements of this kind are
constantly admitted in questions relating to right of way, or rights
of common, or manorial or other local customs. Maps, copies of court
rolls, leases and other deeds, and verdicts, judgments, and orders of
court fall within the exception in cases of this kind. (e) _Statements
in course of duty or business._--A statement with respect to a
particular fact made by a deceased person in pursuance of his duty in
connexion with any office, employment or business, whether public or
private, is admissible as evidence of that fact, if the statement
appears to have been made from personal knowledge, and at or about the
time when the fact occurred. This exception covers entries by clerks
and other employees. (f) _Statements against interest._--A statement
made by a deceased person against his pecuniary or proprietary
interest is admissible as evidence, without reference to the time at
which it was made. Where such a statement is admissible the whole of
it becomes admissible, though it may contain matters not against the
interest of the person who made it, and though the total effect may be
in his favour. Thus, where there was a question whether a particular
sum was a gift or a loan, entries in an account book of receipt of
interest on the sum were admitted, and a statement in the book that
the alleged debtor had on a particular date acknowledged the loan was
also admitted. (g) _Public documents._--Under this head may be placed
recitals in public acts of parliament, notices in the _London_,
_Edinburgh_, or _Dublin Gazette_ (which are made evidence by statute
in a large number of cases), and entries made in the performance of
duty in official registers or records, such as registers of births,
deaths or marriages, registers of companies, records in judicial
proceedings, and the like. An entry in a public document may be
treated as a statement made in the course of duty, but it is
admissible whether the person who made the statement is alive or dead,
and without any evidence as to personal knowledge, or the time at
which the statement is made. (h) _Admissions._--By the term
"admission," as here used, is meant a statement made out of the
witness-box by a party to the proceedings, whether civil or criminal,
or by some person whose statements are binding on that party, against
the interest of that party. The term includes admissions made in
answer to interrogatories, or to a notice to admit facts, but not
admissions made on the pleadings. Admissions, in this sense of the
term, are admissible as evidence against the person by whom they are
made, or on whom they are binding, without reference to the life or
death of the person who made them. A person is bound by the statements
of his agent, acting within the scope of his authority, and barristers
and solicitors are agents for their clients in the conduct of legal
proceedings. Conversely, a person suing or defending on behalf of
another, e.g. as agent or trustee, is bound by the statements of the
person whom he represents. Statements respecting property made by a
predecessor in title bind the successor. Where a statement is put in
evidence as an admission by, or binding on, any person, that person is
entitled to have the whole statement given in evidence. The principle
of this rule is obviously sound, because it would be unfair to pick
out from a man's statement what tells against him, and to suppress
what is in his favour. But the application of the rule is sometimes
attended with difficulty. An admission will not be allowed to be used
as evidence if it was made under a stipulation, express or implied,
that it should not be so used. Such admissions are said to be made
"without prejudice." (i) _Confessions._--A confession is an admission
by a person accused of an offence that he has committed the offence of
which he is accused. But the rules about admitting as evidence
confessions in criminal proceedings are much more strict than the
rules about admissions in civil proceedings. The general rule is, that
a confession is not admissible as evidence against any person except
the person who makes it. But a confession made by one accomplice in
the presence of another is admissible against the latter to this
extent, that, if it implicates him, his silence under the charge may
be used against him, whilst on the other hand his prompt repudiation
of the charge might tell in his favour. In other words, the confession
may be used as evidence of the conduct of the person in whose presence
it was made. A confession cannot be admitted as evidence unless proved
to be voluntary. A confession is not treated as being voluntary if it
appears to the court to have been caused by any inducement, threat or
promise which proceeded from a magistrate or other person in authority
concerned in the charge, and which, in the opinion of the court, gave
the accused person reasonable ground for supposing that by making a
confession he would gain some advantage or avoid some evil in
reference to the proceedings against him. This applies to any
inducement, threat or promise having reference to the charge, whether
it is addressed directly to the accused person or is brought to his
knowledge indirectly. But a confession is not involuntary merely
because it appears to have been caused by the exhortations of a person
in authority to make it as a matter of religious duty, or by an
inducement collateral to the proceedings, or by an inducement held out
by a person having nothing to do with the apprehension, prosecution or
examination of the prisoner. Thus, a confession made to a gaol
chaplain in consequence of religious exhortation has been admitted as
evidence. So also has a confession made by a prisoner to a gaoler in
consequence of a promise by the gaoler, that if the prisoner confessed
he should be allowed to see his wife. To make a confession
involuntary, the inducement must have reference to the prisoner's
escape from the charge against him, and must be made by some person
having power to relieve him, wholly or partially, from the
consequences of the charge. A confession is treated as voluntary if,
in the opinion of the court, it was made after the complete removal of
the impression produced by any inducement, threat or promise which
would have made it involuntary. Where a confession was made under an
inducement which makes the confession involuntary, evidence may be
given of facts discovered in consequence of the confession, and of so
much of the confession as distinctly relates to those facts. Thus, A.
under circumstances which make the confession involuntary, tells a
policeman that he, A., had thrown a lantern into the pond. Evidence
may be given that the lantern was found in the pond, and that A. said
he had thrown it there. It is of course improper to try to extort a
confession by fraud or under the promise of secrecy. But if a
confession is otherwise admissible as evidence, it does not become
inadmissible _merely_ because it was made under a promise of secrecy,
or in consequence of a deception practised on the accused person for
the purpose of obtaining it, or when he was drunk, or because it was
made in answer to questions, whether put by a magistrate or by a
private person, or because he was not warned that he was not bound to
make the confession, and that it might be used against him. If a
confession is given in evidence, the whole of it must be given, and
not merely the parts disadvantageous to the accused person. Evidence
amounting to a confession may be used as such against the person who
gave it, though it was given on oath, and though the proceeding in
which it was given had reference to the same subject-matter as the
proceeding in which it is to be used, and though the witness might
have refused to answer the questions put to him. But if, after
refusing to answer such questions, the witness is improperly compelled
to answer, his answers are not a voluntary confession. The grave
jealousy and suspicion with which the English law regards confessions
offer a marked contrast to the importance attached to this form of
evidence in other systems of procedure, such as the inquisitorial
system which long prevailed, and still to some extent prevails, on the
continent. (j) _Res gestae._--Statements are often admitted as
evidence on the ground that they form part of what is called the
"transaction," or _res gestae_, the occurrence or nature of which is
in question. For instance, where an act may be proved, statements
accompanying and explaining the act made by or to the person doing it,
may be given in evidence. There is no difficulty in understanding the
principle on which this exception from the hearsay rule rests, but
there is often practical difficulty in applying it, and the practice
has varied. How long is the "transaction" to be treated as lasting?
What ought to be treated as "the immediate and natural effect of
continuing action," and, for that reason, as part of the _res gestae_?
When an act of violence is committed, to what extent are the terms of
the complaint made by the sufferer, as distinguished from the fact of
a complaint having been made, admissible as evidence? These are some
of the questions raised. The cases in which statements by a person as
to his bodily or mental condition may be put in evidence may perhaps
be treated as falling under the same principle. In the Rugeley
poisoning case, statements by the deceased person before his illness
as to his state of health, and as to his symptoms during illness, were
admitted as evidence for the prosecution. Under the same principle may
also be brought the rule as to statements in conspiracy cases. In
charges of conspiracy, after evidence has been given of the existence
of the plot, and of the connexion of the accused with it, the charge
against one conspirator may be supported by evidence of anything done,
written, or said, not only by him, but by any other of the
conspirators, in furtherance of the common purpose. On the other hand,
a statement made by one conspirator, not in execution of the common
purpose, but in narration of some event forming part of the
conspiracy, would be treated, not as part of the "transaction," but as
a statement excluded by the hearsay rule. Thus the admissibility of
writings in conspiracy cases may depend on the time when they can be
shown to have been in the possession of a fellow-conspirator, whether
before or after the prisoner's apprehension. (k) _Complaints in rape
cases, &c._--In trials for rape and similar offences, the fact that
shortly after the commission of the alleged offence a complaint was
made by the person against whom the offence was committed, and also
the terms of the complaint, have been admitted as evidence, not of the
facts complained of, but of the consistency of the complainant's
conduct with the story told by her in the witness-box, and as
negativing consent on her part.

4. _Opinion._--The rule excluding expressions of opinion also dates from the first distinction between the functions of witnesses and jury. It was for the witnesses to state facts, for the jury to form conclusions. Of course every statement of fact involves inference, and implies a judgment on phenomena observed by the senses. And the inference is often erroneous, as in the answer to the question, "Was he drunk?" A prudent witness will often guard himself, and is allowed to guard himself, by answering to the best of his belief. But, for practical purposes, it is possible to draw a distinction between a statement of facts observed and an expression of opinion as to the inference to be drawn from these facts, and the rule telling witnesses to state facts and not express opinions is of great value in keeping their statements out of the region of argument and conjecture. The evidence of "experts," that is to say, of persons having a special knowledge of some particular subject, is generally described as constituting the chief exception to the rule. But perhaps it would be more accurate to say that experts are allowed a much wider range than ordinary witnesses in the expression of their opinions, and in the statement of facts on which their opinions are based. Thus, in a poisoning case, a doctor may be asked as an expert whether, in his opinion, a particular poison produces particular symptoms. And, where lunacy is set up as a defence, an expert may be asked whether, in his opinion, the symptoms exhibited by the alleged lunatic commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of their acts, or of knowing that what they do is either wrong or contrary to the law. Similar principles are applied to the evidence of engineers, and in numerous other cases. In cases of disputed handwriting the evidence of experts in handwriting is expressly recognized by statute (Evidence and Practice on Criminal Trials 1865).

IV. DOCUMENTARY EVIDENCE

Charters and other writings were exhibited to the jury at a very early date, and it is to writings so exhibited that the term "evidence" or "evidences" seems to have been originally applied _par excellence_. The oral evidence of witnesses came later. Where a document is to be used as evidence the first question is how its contents are to be proved. To this question the principle of "best evidence" applies, in the form of the rule that primary evidence must be given except in the cases where secondary evidence is allowed. By primary evidence is meant the document itself produced for inspection. By secondary evidence is meant a copy of the document, or verbal accounts of its contents.

The rule as to the inadmissibility of a copy of a document is applied
much more strictly to private than to public or official documents.
Secondary evidence may be given of the contents of a private document
in the following cases:

(a) Where the original is shown or appears to be in the possession of
the adverse party, and he, after having been served with reasonable
notice to produce it, does not do so.

(b) Where the original is shown or appears to be in the possession or
power of a stranger not legally bound to produce it, and he, after
having been served with a writ of _subpoena duces tecum_, or after
having been sworn as a witness and asked for the document, and having
admitted that it is in court, refuses to produce it.

(c) Where it is shown that proper search has been made for the
original, and there is reason for believing that it is destroyed or
lost.

(d) Where the original is of such a nature as not to be easily
movable, as in the case of a placard posted on a wall, or of a
tombstone, or is in a country from which it is not permitted to be
removed.

(e) Where the original is a document for the proof of which special
provision is made by any act of parliament, or any law in force for
the time being. Documents of that kind are practically treated on the
same footing as private documents.

(f) Where the document is an entry in a banker's book, provable
according to the special provisions of the Bankers' Books Evidence Act
1879.

Secondary evidence of a private document is usually given either by
producing a copy and calling a witness who can prove the copy to be
correct, or, when there is no copy obtainable, by calling a witness
who has seen the document, and can give an account of its contents. No
general definition of public document is possible, but the rules of
evidence applicable to public documents are expressly applied by
statute to many classes of documents. Primary evidence of any public
document may be given by producing the document from proper custody,
and by a witness identifying it as being what it professes to be.
Public documents may always be proved by secondary evidence, but the
particular kind of secondary evidence required is in many cases
defined by statute. Where a document is of such a public nature as to
be admissible in evidence on its mere production from the proper
custody, and no statute exists which renders its contents provable by
means of a copy, any copy thereof or extract therefrom is admissible
as proof of its contents, if it is proved to be an examined copy or
extract, or purports to be signed or certified as a true copy or
extract by the officer to whose custody the original is entrusted.
Many statutes provide that various certificates, official and public
documents, documents and proceedings of corporations and of joint
stock and other companies, and certified copies of documents, by-laws,
entries in registers and other books, shall be receivable as evidence
of certain particulars in courts of justice, if they are authenticated
in the manner prescribed by the statutes. Whenever, by virtue of any
such provision, any such certificate or certified copy is receivable
as proof of any particular in any court of justice, it is admissible
as evidence, if it purports to be authenticated in the manner
prescribed by law, without calling any witness to prove any stamp,
seal, or signature required for its authentication, or the official
character of the person who appears to have signed it. The Documentary
Evidence Acts 1868, 1882 and 1895, provide modes of proving the
contents of several classes of proclamations, orders and regulations.

If a document is of a kind which is required by law to be attested,
but not otherwise, an attesting witness must be called to prove its
due execution. But this rule is subject to the following exceptions:

(a) If it is proved that there is no attesting witness alive, and
capable of giving evidence, then it is sufficient to prove that the
attestation of at least one attesting witness is in his handwriting,
and that the signature of the person executing the document is in the
handwriting of that person.

(b) If the document is proved, or purports to be, more than thirty
years old, and is produced from what the court considers to be its
proper custody, an attesting witness need not be called, and it will
be presumed without evidence that the instrument was duly executed and
attested.

Where a document embodies a judgment, a contract, a grant, or disposition of property, or any other legal transaction or "act in the law," on which rights depend, the validity of the transaction may be impugned on the ground of fraud, incapacity, want of consideration, or other legal ground. But this seems outside the law of evidence. In this class of cases a question often arises whether extrinsic evidence can be produced to vary the nature of the transaction embodied in the document. The answer to this question seems to depend on whether the document was or was not intended to be a complete and final statement of the transaction which it embodies. If it was, you cannot go outside the document for the purpose of ascertaining the nature of the transaction. If it was not, you may. But the mere statement of this test shows the difficulty of formulating precise rules, and of applying them when formulated. FitzJames Stephen mentions, among the facts which may be proved in these cases, the existence of separate and consistent oral agreements as to matters on which the document is silent, if there is reason to believe that the document is not a complete and final statement of the transaction, and the existence of any usage or custom with reference to which a contract may be presumed to have been made. But he admits that the rules on the subject are "by no means easy to apply, inasmuch as from the nature of the case an enormous number of transactions fall close on one side or the other of most of them." The underlying principle appears to be a rule of substantive law rather than of evidence. When parties to an arrangement have reduced the terms of the arrangement to a definite, complete, and final written form, they should be bound exclusively by the terms embodied in that form. The question in each case is under what circumstances they ought to be treated as having done so.

The expression "parol evidence," which includes written as well as verbal evidence, has often been applied to the extrinsic evidence produced for the purpose of varying the nature of the transaction embodied in a document. It is also applied to extrinsic evidence used for another purpose, namely, that of explaining the meaning of the terms used in a document. The two questions, What is the real nature of the transaction referred to in a document? and, What is the meaning of a document? are often confused, but are really distinct from each other. The rules bearing on the latter question are rules of construction or interpretation rather than of evidence, but are ordinarily treated as part of the law of evidence, and are for that reason included by FitzJames Stephen in his Digest. In stating these rules he adopts, with verbal modifications, the six propositions laid down by Vice-Chancellor Wigram in his _Examinations of the Rules of Law respecting the admission of Extrinsic Evidence in Aid of the Interpretation of Wills_. The substance of these propositions appears to be this, that wherever the meaning of a document cannot be satisfactorily ascertained from the document itself, use may be made of any other evidence for the purpose of elucidating the meaning, subject to one restriction, that, except in cases of equivocation, i.e. where a person or thing is described in terms applicable equally to more than one, resort cannot be had to extrinsic expressions of the author's intention.

V. WITNESSES

1. _Attendance._--If a witness does not attend voluntarily he can be required to attend by a writ of _subpoena_.

2. _Competency._--As a general rule every person is a competent witness. Formerly persons were disqualified by crime or interest, or by being parties to the proceedings, but these disqualifications have now been removed by statute, and the circumstances which formerly created them do not affect the competency, though they may often affect the credibility, of a witness.

Under the general law as it stood before the Criminal Evidence Act 1898 came into force, a person charged with an offence was not competent to give evidence on his own behalf. But many exceptions had been made to this rule by legislation, and the rule itself was finally abolished by the act of 1898. Under that law a person charged is a competent witness, but he can only give evidence for the defence, and can only give evidence if he himself applies to do so. Under the law as it stood before 1898, persons jointly charged and being tried together were not competent to give evidence either for or against each other. Under the act of 1898 a person charged jointly with another is a competent witness, but only for the defence, and not for the prosecution. If, therefore, one of the persons charged applies to give evidence his cross-examination must not be conducted with a view to establish the guilt of the other. Consequently, if it is thought desirable to use against one prisoner the evidence of another who is being tried with him, the latter should be released, or a separate verdict of not guilty taken against him. A prisoner so giving evidence is popularly said to turn king's evidence. It follows that, subject to what has been said above as to persons tried together, the evidence of an accomplice is admissible against his principal, and _vice versa_. The evidence of an accomplice is, however, always received with great jealousy and caution. A conviction on the unsupported testimony of an accomplice may, in some cases, be strictly legal, but the practice is to require it to be confirmed by unimpeachable testimony in some material part, and more especially as to his identification of the person or persons against whom his evidence may be received. The wife of a person charged is now a competent witness, but, except in certain special cases, she can only give evidence for the defence, and can only give evidence if her husband applies that she should do so. The special cases in which a wife can be called as a witness either for the prosecution or for the defence, and without the consent of the person charged, are cases arising under particular enactments scheduled to the act of 1898, and relating mainly to offences against wives and children, and cases in which the wife is by common law a competent witness against her husband, i.e. where the proceeding is against the husband for bodily injury or violence inflicted on his wife. The rule of exclusion extends only to a lawful wife. There is no ground for supposing that the wife of a prosecutor is an incompetent witness. A witness is incompetent if, in the opinion of the court, he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible. The particular form of the religious belief of a witness, or his want of religious belief, does not affect his competency. This ground of incompetency has now been finally removed by the Oaths Act 1888. It will be seen that the effect of the successive enactments which have gradually removed the disqualifications attaching to various classes of witnesses has been to draw a distinction between the _competency_ of a witness and his _credibility_. No person is disqualified on moral or religious grounds, but his character may be such as to throw grave doubts on the value of his evidence. No relationship, except to a limited extent that of husband and wife, excludes from giving evidence. The parent may be examined on the trial of the child, the child on that of the parent, master for or against servant, and servant for or against master. The relationship of the witness to the prosecutor or the prisoner in such cases may affect the credibility of the witness, but does not exclude his evidence.

3. _Privilege._--It does not follow that, because a person is _competent_ to give evidence, he can therefore be compelled to do so.

No one, except a person charged with an offence when giving evidence on his own application, and as to the offence wherewith he is charged, is bound to answer a question if the answer would, in the opinion of the court, have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge, penalty, or forfeiture, which the court regards as reasonably likely to be preferred or sued for. Accordingly, an accomplice cannot be examined without his consent, but if an accomplice who has come forward to give evidence on a promise of pardon, or favourable consideration, refuses to give full and fair information, he renders himself liable to be convicted on his own confession. However, even accomplices in such circumstances are not required to answer on their cross-examination as to other offences. Where, under the new law, a person charged with an offence offers himself as a witness, he may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged. But he may not be asked, and if he is asked must not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any other offence, or is of bad character, unless:--

(i.) The proof that he has committed, or been convicted of, the other
offence is admissible evidence to show that he is guilty of the
offence with which he is then charged; or,

(ii.) He has personally, or by his advocate, asked questions of the
witnesses for the prosecution, with a view to establish his own good
character, or has given evidence of his good character, or the nature
or conduct of the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the prosecution; or,

(iii.) He has given evidence against any other person charged with the
same offence.

He may not be asked questions tending to criminate his wife.

The privilege as to criminating answers does not cover answers merely tending to establish a civil liability. No one is excused from answering a question or producing a document only because the answer or document may establish or tend to establish that he owes a debt, or is otherwise liable to any civil proceeding. It is a privilege for the protection of the witness, and therefore may be waived by him. But there are other privileges which cannot be so waived. Thus, on grounds of public policy, no one can be compelled, or is allowed, to give evidence relating to any affairs of state, or as to official communications between public officers upon public affairs, except with the consent of the head of the department concerned, and this consent is refused if the production of the information asked for is considered detrimental to the public service.

Again, in cases in which the government is immediately concerned, no witness can be compelled to answer any question the answer to which would tend to discover the names of persons by or to whom information was given as to the commission of offences. It is, as a rule, for the court to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of justice.

A husband is not compellable to disclose any communication made to him by his wife during the marriage; and a wife is not compellable to disclose any communication made to her by her husband during the marriage.

A legal adviser is not permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication, oral or documentary, made to him _as such legal adviser_, by or on behalf of his client, during, in the course of, and for the purpose of his employment, or to disclose any advice given by him to his client during, in the course of, and for the purpose of such employment. But this protection does not extend to--

(a) Any such communication if made in furtherance of any criminal purpose; nor

(b) Any fact observed by a legal adviser in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether his attention was directed to such fact by or on behalf of his client or not; nor

(c) Any fact with which the legal adviser became acquainted otherwise than in his character as such.

Medical men and clergymen are not privileged from the disclosure of communications made to them in professional confidence, but it is not usual to press for the disclosures of communications made to clergymen.

4. _Oaths._--A witness must give his evidence under the sanction of an oath, or of what is equivalent to an oath, that is to say, of a solemn promise to speak the truth. The ordinary form of oath is adapted to Christians, but a person belonging to a non-Christian religion may be sworn in any form prescribed or recognized by the custom of his religion. (See the article OATH.)

5. _Publicity._--The evidence of a witness at a trial must, as a general rule, be given in open court in the course of the trial. The secrecy which was such a characteristic feature of the "inquisition" procedure is abhorrent to English law, and, even where publicity conflicts with decency, English courts are very reluctant to dispense with or relax the safeguards for justice which publicity involves.

6. _Examination._--The normal course of procedure is this. The party who begins, i.e. ordinarily the plaintiff or prosecutor, calls his witnesses in order. Each witness is first examined on behalf of the party for whom he is called. This is called the examination in chief. Then he is liable to be cross-examined on behalf of the other side. And, finally, he may be re-examined on behalf of his own side. After the case for the other side has been opened, the same procedure is adopted with the witnesses for that side. In some cases the party who began is allowed to adduce further evidence in reply to his opponent's evidence. The examination is conducted, not by the court, but by or on behalf of the contending parties. It will be seen that the principle underlying this procedure is that of the duel, or conflict between two contending parties, each relying on and using his own evidence, and trying to break down the evidence of his opponent. It differs from the principle of the "inquisition" procedure, in which the court takes a more active part, and in which the cases for the two sides are not so sharply distinguished. In a continental trial it is often difficult to determine whether the case for the prosecution or the case for the defence is proceeding. Conflicting witnesses stand up together and are "confronted" with each other. In the examination in chief questions must be confined to matters bearing on the main question at issue, and a witness must not be asked leading questions, i.e. questions suggesting the answer which the person putting the question wishes or expects to receive, or suggesting disputed facts about which the witness is to testify. But the rule about leading questions is not applied where the questions asked are simply introductory, and form no part of the real substance of the inquiry, or where they relate to matters which, though material, are not disputed. And if the witness called by a person appears to be directly hostile to him, or interested on the other side, or unwilling to reply, the reason for the rules applying to examination in chief breaks down, and the witness may be asked leading questions and cross-examined, and treated in every respect as though he was a witness called on the other side, except that a party producing a witness must not impeach his credit by general evidence of bad character (Evidence and Practice on Criminal Trials Act 1865). In cross-examination questions not bearing on the main issue and leading questions may be put and (subject to the rules as to privilege) must be answered, as the cross-examiner is entitled to test the examination in chief by every means in his power. Questions not bearing on the main issue are often asked in cross-examination merely for the purpose of putting off his guard a witness who is supposed to have learnt up his story. In cross-examination questions may also be asked which tend either to test the accuracy or credibility of the witness, or to shake his credit by impeaching his motives or injuring his character. The licence allowed in cross-examination has often been seriously abused, and the power of the court to check it is recognized by one of the rules of the supreme court (R.S.C. xxxvi. 39, added in 1883). It is considered wrong to put questions which assume that facts have been proved which have not been proved, or that answers have been given contrary to the fact. A witness ought not to be pressed in cross-examination as to any facts which, if admitted, would not affect the question at issue or the credibility of the witness. If the cross-examiner intends to adduce evidence contrary to the evidence given by the witness, he ought to put to the witness in cross-examination the substance of the evidence which he proposes to adduce, in order to give the witness an opportunity of retracting or explaining. Where a witness has answered a question which only tends to affect his credibility by injuring his character, it is only in a limited number of cases that evidence can be given to contradict his answer. Where he is asked whether he has ever been convicted of any felony or misdemeanour, and denies or refuses to answer, proof may be given of the truth of the facts suggested (28 & 29 Vict. c. 15, s. 6). The same rule is observed where he is asked a question tending to show that he is not impartial. Where a witness has previously made a statement inconsistent with his evidence, proof may be given that he did in fact make it. But before such proof is given the circumstances of the alleged statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether he did or did not make the statement. And if the statement was made in, or has been reduced to, writing, the attention of the witness must, before the writing is used against him, be called to those parts of the writing which are to be used for the purpose of contradicting him (Evidence and Practice on Criminal Trials Act 1865, ss. 4, 5). The credibility of a witness may be impeached by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit on his oath. These persons may not on their examination in chief give reasons for their belief, but they may be asked their reasons in cross-examination, and their answers cannot be contradicted. When the credit of a witness is so impeached, the party who called the witness may give evidence in reply to show that the witness is worthy of credit. Re-examination must be directed exclusively to the explanation of matters referred to in cross-examination, and if new matter is, by the permission of the court, introduced in re-examination, the other side may further cross-examine upon it. A witness under examination may refresh his memory by referring to any writing made by himself at or about the time of the occurrence to which the writing relates, or made by any other person, and read and found accurate by the witness at or about the time. An expert may refresh his memory by reference to professional treatises.

For the history of the English law of evidence, see Brunner,
_Entstehung der Schwurgerichte_; Bigelow, _History of Procedure in
England_; Stephen (Sir J.F.), _History of the Criminal Law of
England_; Pollock and Maitland, _History of English Law_, bk. ii. ch.
ix.; Thayer, Preliminary Treatise on Evidence at the Common Law. The
principal text-books now in use are--Roscoe, _Digest of the Law of
Evidence on the Trial of Actions at Nisi Prius_ (18th ed., 1907);
Roscoe, _Digest of the Law of Evidence in Criminal Cases_ (13th ed.,
1908); Taylor, _Treatise on the Law of Evidence_ (10th ed., 1906);
Best, _Principles of the Law of Evidence_ (10th ed., 1906); Powell,
_Principles and Practice of the Law of Evidence_ (8th ed., 1904);
Stephen, _Digest of the Law of Evidence_ (8th ed., 1907); Wills,
_Theory and Practice of the Law of Evidence_ (1907). For the history
of the law of criminal evidence in France, see Esmein, _Hist. de la
procedure criminelle en France_. For Germany, see Holtzendorff,
_Encyclopadie der Rechtswissenschaft_ (passages indexed under head
"Beweis"); Holtzendorff, _Rechtslexikon_ ("Beweis"). (C. P. I.)

FOOTNOTE:

[1] Reference may be made to a well-known passage in the _Essay
concerning Human Understanding_ (Book iv. ch. xv.): "The grounds of
probability are--First, the conformity of anything with our own
knowledge, observation and experience. Second, the testimony of
others touching their observation and experience. In the testimony of
others is to be considered (1) the number, (2) the integrity, (3) the
skill of the witnesses. (4) The design of the author, where it is a
testimony out of a book cited. (5) The consistency of the parts and
circumstances of the relation. (6) Contrary testimonies."

EVIL EYE. The terror of the arts of "fascination," i.e. that certain persons can bewitch, injure and even kill with a glance, has been and is still very widely spread. The power was not thought to be always maliciously cultivated. It was as often supposed to be involuntary (cf. Deuteronomy xxviii. 54); and a story is told of a Slav who, afflicted with the evil eye, at last blinded himself in order that he might not be the means of injuring his children (Woyciki, _Polish Folklore_, trans. by Lewenstein, p. 25). Few of the old classic writers fail to refer to the dread power. In Rome the "evil eye" was so well recognized that Pliny states that special laws were enacted against injury to crops by incantation, excantation or fascination. The power was styled [Greek: baskania] by the Greeks and _fascinatio_ by the Latins. Children and young animals of all kinds were thought to be specially susceptible. Charms were worn against the evil eye both by man and beast, and in Judges viii. 21 it is thought there is a reference to this custom in the allusion to the "ornaments" on the necks of camels. In classic times the wearing of amulets was universal. They were of three classes: (1) those the intention of which was to attract on to themselves, as the lightning-rod the lightning, the malignant glance; (2) charms hidden in the bosom of the dress; (3) written words from sacred writings. Of these three types the first was most numerous. They were oftenest of a grotesque and generally grossly obscene nature. They were also made in the form of frogs, beetles and so on. But the ancients did not wholly rely on amulets. Spitting was among the Greeks and Romans a most common antidote to the poison of the evil eye. According to Theocritus it is necessary to spit three times into the breast of the person who fears fascination. Gestures, too, often intentionally obscene, were regarded as prophylactics on meeting the dreaded individual. The evil eye was believed to have its impulse in envy, and thus it came to be regarded as unlucky to have any of your possessions praised. Among the Romans, therefore, it was customary when praising anything to add _Praefiscini dixerim_ (Fain Evil! I should say). This custom survives in modern Italy, where in like circumstances is said _Si mal occhio non ci fosse_ (May the evil eye not strike it). The object of these conventional phrases was to prove that the speaker was sincere and had no evil designs in his praise. Though there is no set formula, traces of the custom are found in English rural sayings, e.g. the Somersetshire "I don't wish ee no harm, so I on't zay no more." This is what the Scots call "fore-speaking," when praise beyond measure is likely to be followed by disease or accident. A Manxman will never say he is very well: he usually admits that he is "middling," or qualifies his admission of good health by adding "now" or "just now." The belief led in many countries to the saying, when one heard anybody or anything praised superabundantly, "God preserve him or it." So in Ireland, to avoid being suspected of having the evil eye, it is advisable when looking at a child to say "God bless it"; and when passing a farm-yard where cows are collected at milking time it is usual for the peasant to say, "The blessing of God be on you and all your labour." Bacon writes: "It seems some have been so curious as to note that the times when the stroke ... of an envious eye does most hurt are particularly when the party envied is beheld in glory and triumph."

The powers of the evil eye seem indeed to have been most feared by the prosperous. Its powers are often quoted as almost limitless. Thus one record solemnly declares that in a town of Africa a fascinator called Elzanar killed by his evil art no less than 80 people in two years (W.W. Story, _Castle St Angelo_, 1877, p. 149). The belief as affecting cattle was universal in the Scottish Highlands as late as the 18th century and still lingers. Thus if a stranger looks admiringly on a cow the peasants still think she will waste away, and they offer the visitor some of her milk to drink in the belief that in this manner the spell is broken. The modern Turks and Arabs also think that their horses and camels are subject to the evil eye. But the people of Italy, especially the Neapolitans, are the best modern instances of implicit believers. The _jettatore_, as the owner of the evil eye is called, is so feared that at his approach it is scarcely an exaggeration to say that a street will clear: everybody will rush into doorways or up alleys to avoid the dreaded glance. The _jettatore di bambini_ (fascinator of children) is the most dreaded of all. The evil eye is still much feared for horses in India, China, Turkey, Greece and almost everywhere where horses are found. In rural England the pig is of all animals oftenest "overlooked." While the Italians are perhaps the greatest believers in the evil eye as affecting persons, the superstition is rife in the East. In India the belief is universal. In Bombay the blast of the evil eye is supposed to be a form of spirit-possession. In western India all witches and wizards are said to be evil-eyed. Modern Egyptian mothers thus account for the sickly appearance of their babies. In Turkey passages from the Koran are painted on the outside of houses to save the inmates, and texts as amulets are worn upon the person, or hung upon camels and horses by Arabs, Abyssinians and other peoples. The superstition is universal among savage races.

For a full discussion see _Evil Eye_ by F.T. Elworthy (London, 1895);
also W.W. Story, _Castle St Angelo and the Evil Eye_ (1877); E.N.
Rolfe and H. Ingleby, _Naples in 1888_ (1888); Johannes Christian
Frommann, _Tractatus de fascinatione novus et singularis_, &c., &c.
(Nuremburg, 1675); R.C. Maclagan, _Evil Eye in the Western Highlands_
(1902).

EVOLUTION. The modern doctrine of evolution or "evolving," as opposed to that of simple creation, has been defined by Prof. James Sully in the 9th edition of this encyclopaedia as a "natural history of the cosmos including organic beings, expressed in physical terms as a mechanical process." The following exposition of the historical development of the doctrine is taken from Sully's article, and for the most part is in his own words.

In the modern doctrine of evolution the cosmic system appears as a natural product of elementary matter and its laws. The various grades of life on our planet are the natural consequences of certain physical processes involved in the gradual transformations of the earth. Conscious life is viewed as conditioned by physical (organic and more especially nervous) processes, and as evolving itself in close correlation with organic evolution. Finally, human development, as exhibited in historical and prehistorical records, is regarded as the highest and most complex result of organic and physical evolution. This modern doctrine of evolution is but an expansion and completion of those physical theories (see below) which opened the history of speculation. It differs from them in being grounded on exact and verified research. As such, moreover, it is a much more limited theory of evolution than the ancient. It does not necessarily concern itself about the question of the infinitude of worlds in space and in time. It is content to explain the origin and course of development of the world, the solar or, at most, the sidereal system which falls under our own observation. It would be difficult to say what branches of science had done most towards the establishment of this doctrine. We must content ourselves by referring to the progress of physical (including chemical) theory, which has led to the great generalization of the conservation of energy; to the discovery of the fundamental chemical identity of the matter of our planet and of other celestial bodies, and of the chemical relations of organic and inorganic bodies; to the advance of astronomical speculation respecting the origin of the solar system, &c.; to the growth of the science of geology which has necessitated the conception of vast and unimaginable periods of time in the past history of our globe, and to the rapid march of the biological sciences which has made us familiar with the simplest types and elements of organism; finally, to the development of the science of anthropology (including comparative psychology, philology, &c.), and to the vast extension and improvement of all branches of historical study.