VOLUME X SLICE I Evangelical Church Conference to Fairbairn, Sir William (continued 2)

By the institution of the special mission of Lord Ashburton, however, the direct negotiations between the two governments were, about the time of Everett’s arrival in London, transferred to Washington, though much business was transacted at the American legation in London.

Immediately after the accession of Polk to the presidency Everett was recalled. From January 1846 to 1849, as the successor of Josiah Quincy, he was president of Harvard College. On the death, in October 1852, of his friend Daniel Webster, to whom he had always been closely attached, and of whom he was always a confidential adviser, he succeeded him as secretary of state, which post he held for the remaining months of Fillmore’s administration, leaving it to go into the Senate in 1853, as one of the representatives of Massachusetts. Under the work of the long session of 1853-1854 his health gave way. In May 1854 he resigned his seat, on the orders of his physician, and retired to what was called private life.

But, as it proved, the remaining ten years of his life most widely established his reputation and influence throughout America. As early as 1820 he had established a reputation as an orator, such as few men in later days have enjoyed. He was frequently invited to deliver an “oration” on some topic of historical or other interest. With him these “orations,” instead of being the ephemeral entertainments of an hour, became careful studies of some important theme. Eager to avert, if possible, the impending conflict of arms between the North and South, Everett prepared an “oration” on George Washington, which he delivered in every part of America. In this way, too, he raised more than one hundred thousand dollars, for the purchase of the old home of Washington at Mount Vernon. Everett also prepared for the Encyclopaedia Britannica a biographical sketch of Washington, which was published separately in 1860. In 1860 Everett was the candidate of the short-lived Constitutional-Union party for the vice-presidency, on the ticket with John Bell (q.v.), but received only 39 electoral votes. During the Civil War he zealously supported the national government and was called upon in every quarter to speak at public meetings. He delivered the last of his great orations at Gettysburg, after the battle, on the consecration of the national cemetery there. On the 9th of January 1865 he spoke at a public meeting in Boston to raise funds for the southern poor in Savannah. At that meeting he caught cold, and the immediate result was his death on the 15th of January 1865.

In Everett’s life and career was a combination of the results of diligent training, unflinching industry, delicate literary tastes and unequalled acquaintance with modern international politics. This combination made him in America an entirely exceptional person. He was never loved by the political managers; he was always enthusiastically received by assemblies of the people. He would have said himself that the most eager wish of his life had been for the higher education of his countrymen. His orations have been collected in four volumes (1850-1859). A work on international law, on which he was engaged at his death, was never finished. Allibone records 84 titles of his books and published addresses.

(E. E. H.)

EVERETT, a city of Middlesex county, Massachusetts, U.S.A., adjoining Chelsea and 3 m. N. of Boston, of which it is a residential suburb. Pop. (1880) 4159; (1890) 11,068; (1900) 24,336, of whom 6882 were foreign-born; (1910 census) 33,484. It covers an area of about 3 sq. m. and is served by the Boston & Maine railway and by interurban electric lines. Everett has the Frederick E. Parlin memorial library (1878), the Shute memorial library (1898), the Whidden memorial hospital and Woodlawn cemetery (176 acres). The principal manufactures are coke, chemicals and boots and shoes; among others are iron and structural steel. According to the U.S. Census of Manufactures (1905), “the coke industry in Everett is unique, inasmuch as illuminating gas is the primary product and coke really a by-product, while the coal used is brought from mines located in Nova Scotia.” The value of the city’s total factory product increased from $4,437,180 in 1900 to $6,135,650 in 1905 or 38.3%. Everett was first settled about 1630, remaining a part of Malden (and being known as South Malden) until 1870, when it was incorporated as a township. It was chartered as a city in 1892.

EVERETT, a city, a sub-port of entry, and the county-seat of Snohomish county, Washington, U.S.A., on Puget Sound, at the mouth of the Snohomish river, about 35 m. N. of Seattle. Pop. (1900) 7838; (1910 U.S. census) 24,814. The city is served by the Northern Pacific and the Great Northern railways, being the western terminus of the latter’s main transcontinental line, by interurban electric railway, and by several lines of Sound and coasting freight and passenger steamboats. Everett has a fine harbour with several large iron piers. Among its principal buildings are a Carnegie library, a Y.M.C.A. building and two hospitals. The buildings of the Pacific College were erected here by the United Norwegian Lutheran Church in 1908. The city is in a rich lumbering, gardening, farming, and copper-, gold- and silver-mining district. There is a U.S. assayer’s office here, and there are extensive shipyards, a large paper mill, iron works, and, just outside the city limits, the smelters of the American Smelters Securities Company, in connexion with which is one of the two plants in the United States for saving arsenic from smelter fumes. Lumber interests, however, are of most importance, and here are some of the largest lumber plants in the Pacific Northwest. Red-cedar shingles are an important product. Everett was settled in 1891 and was incorporated in 1893. Its rapid growth is due to its favourable situation as a commercial port, its transportation facilities, and its nearness to extensive forests whence the material for its chief industries is obtained.

EVERGLADES, an American lake, about 8000 sq. m. in area, in which are numerous half-submerged islands; situated in the southern part of Florida, U.S.A., in Lee, De Soto, Dade and St Lucie counties. West of it is the Big Cypress Swamp. The floor of the lake is a limestone basin, extending from Lake Okechobee in the N. to the extreme S. part of the state, and the lake varies in depth from 1 to 12 ft., its water being pure and clear. The surface is above tide level, and the lake is enclosed, probably on all sides, within an outcropping limestone rim, averaging about 10 ft. above mean low tide, and approaching much nearer to the Atlantic on the E. than to the gulf on the W. There are several small outlets, such as the Miami river and the New river on the E. and the Shark river on the S.W., but no streams empty into the Everglades, and the water-supply is furnished by springs and precipitation. There is a general south-easterly movement of the water. The soil of the islands is very fertile and is subject to frequent inundations, but gradually the water area is being replaced by land. The vegetation is luxuriant, the live oak, wild lemon, wild orange, cucumber, papaw, custard apple and wild rubber trees being among the indigenous species; there are, besides, many varieties of wild flowers, the orchids being especially noteworthy. The fauna is also varied; the otter, alligator and crocodile are found, also the deer and panther, and among the native birds are the ibis, egret, heron and limpkin. There are two seasons, wet and dry, but the climate is equable.

Systematic exploration has been prevented by the dense growth of saw grass (Cladium effusum), a kind of sedge, with sharp, saw-toothed leaves, which grows everywhere on the muck-covered rock basin and extends several feet above the shallow water. The first white man to enter the region was Escalente de Fontenada, a Spanish captive of an Indian chief, who named the lake Laguno del Espiritu Santo and the islands Cayos del Espiritu Santo. Between 1841 and 1856 various United States military forces penetrated the Everglades for the purpose of attacking and driving out the Seminoles, who took refuge here. The most important explorations during the later years of the 19th century were those of Major Archie P. Williams in 1883, James E. Ingraham in 1892 and Hugh L. Willoughby in 1897. The Seminole Indians were in 1909 practically the only inhabitants. In 1850 under the “Arkansas Bill,” or Swamp and Overflow Act, practically all of the Everglades, which the state had been urging the federal government to drain and reclaim, were turned over to the state for that purpose, with the provision that all proceeds from such lands be applied to their reclamation. A board of trustees for the Internal Improvement Fund, created in 1855 and having as members ex officio the governor, comptroller, treasurer, attorney-general and commissioner-general, sold and allowed to railway companies much of the grant. Between 1881 and 1896 a private company owning 4,000,000 acres of the Everglades attempted to dig a canal from Lake Okechobee through Lake Hicpochee and along the Caloosahatchee river to the Gulf of Mexico; the canal was closed in 1902 by overflows. Six canals were begun under state control in 1905 from the lake to the Atlantic, the northernmost at Jensen, the southernmost at Ft. Lauderdale; the total cost, estimated at $1,035,000 for the reclamation of 12,500 sq. m., is raised by a drainage tax (not to exceed 10 cents per acre) levied by the trustees of the Internal Improvement Fund and Board of Drainage commissioners. The small area reclaimed prior to that year (1905) was found very fertile and particularly adapted to raising sugar-cane, oranges and garden truck.

See Hugh L. Willoughby’s Across the Everglades (Philadelphia, 1898), and especially an article “The Everglades of Florida” by Edwin A. Dix and John M. MacGonigle, in the Century Magazine for February 1905.

EVERGREEN, a general term applied to plants which are always in leaf, as contrasted with deciduous trees which are bare for some part of the year (see Horticulture). In temperate or colder zones where a season favourable to vegetation is succeeded by an unfavourable or winter season, leaves of evergreens must be protected from the frost and cold drying winds, and are therefore tougher or more leathery in texture than those of deciduous trees, and frequently, as in pines, firs and other conifers, are needle-like, thus exposing a much smaller surface to the drying action of cold winds. The number of seasons for which the leaves last varies in different plants; every season some of the older leaves fall, while new ones are regularly produced. The common English bramble is practically evergreen, the leaves lasting through winter and until the new leaves are developed next spring. In privet also the leaves fall after the production of new ones in the next year. In other cases the leaves last several years, as in conifers, and may sometimes be found on eleven-year-old shoots.

EVERLASTING, or Immortelle, a plant belonging to the division Tubuliflorae of the natural order Compositae, known botanically as Helichrysum orientale. It is a native of North Africa, Crete, and the parts of Asia bordering on the Mediterranean; and it is cultivated in many parts of Europe. It first became known in Europe about the year 1629, and has been cultivated since 1815. In common with several other plants of the same group, known as “everlastings,” the immortelle plant possesses a large involucre of dry scale-like or scarious bracts, which preserve their appearance when dried, provided the plant be gathered in proper condition. The chief supplies of Helichrysum orientale come from lower Provence, where it is cultivated in large quantities on the ground sloping to the Mediterranean, in positions well exposed to the sun, and usually in plots surrounded by dry stone walls. The finest flowers are grown on the slopes of Bandols and Ciotat, where the plant begins to flower in June. It requires a light sandy or stony soil, and is very readily injured by rain or heavy dews. It can be propagated in quantity by means of offsets from the older stems. The flowering stems are gathered in June, when the bracts are fully developed, all the fully-expanded and immature flowers being pulled off and rejected. A well-managed plantation is productive for eight or ten years. The plant is tufted in its growth, each plant producing 60 or 70 stems, while each stem produces an average of 20 flowers. About 400 such stems weigh a kilogramme. A hectare of ground will produce 40,000 plants, bearing from 2,400,000 to 2,800,000 stems, and weighing from 5½ to 6½ tons, or from 2 to 3 tons per acre. The colour of the bracts is a deep yellow. The natural flowers are commonly used for garlands for the dead, or plants dyed black are mixed with the yellow ones. The plant is also dyed green or orange-red, and thus employed for bouquets or other ornamental purposes.

Other species of Helichrysum and species of allied genera with scarious heads of flowers are also known as “everlastings.” One of the best known is the Australian species H. bracteatum, with several varieties, including double forms, of different colours; H. vestitum (Cape of Good Hope) has white satiny heads. Others are species of Helipterum (West Australia and South Africa), Ammobium and Waitzia (Australia) and Xeranthemum (south Europe). Several members of the natural order Amarantaceae have also “everlasting” flowers; such are Gomphrena globosa, with rounded or oval heads of white, orange, rose or violet, scarious bracts, and Celosia pyramidalis, with its elegant, loose, pyramidal inflorescences. Frequently these everlastings are mixed with bleached grasses, as Lagurus ovatus, Briza maxima, Bromus brizaeformis, or with the leaves of the Cape silver tree (Leucadendron argenteum), to form bouquets or ornamental groups.

EVERSLEY, CHARLES SHAW LEFEVRE, Viscount (1794-1888), speaker of the British House of Commons, eldest son of Mr Charles Shaw (who assumed his wife’s name of Lefevre in addition to his own on his marriage), was born in London on the 22nd of February 1794, and educated at Winchester and at Trinity College, Cambridge. He was called to the bar in 1819, and though a diligent student was also a keen sportsman. Marrying a daughter of Mr Samuel Whitbread, whose wife was the sister of Earl Grey, afterwards premier, he thus became connected with two influential political families, and in 1830 he entered the House of Commons as member for Downton, in the Liberal interest. In 1831 he was returned, after a severe contest, as one of the county members for Hampshire, in which he resided; and after the passing of the Reform Act of 1832 he was elected for the Northern Division of the county. For some years Mr Shaw Lefevre was chairman of a committee on petitions for private bills. In 1835 he was chairman of a committee on agricultural distress, but as his report was not accepted by the House, he published it as a pamphlet addressed to his constituents. He acquired a high reputation in the House of Commons for his judicial fairness, combined with singular tact and courtesy, and when Mr James Abercromby retired in 1839, he was nominated as the Liberal candidate for the chair. The Conservatives put forward Henry Goulburn, but Mr Shaw Lefevre was elected by 317 votes to 299. The period was one of fierce party conflict, and the debates were frequently very acrimonious; but the dignity, temper and firmness of the new speaker were never at fault. In 1857 he had served longer than any of his predecessors, except the celebrated Arthur Onslow (1691-1768), who was speaker for more than 33 years in five successive parliaments. Retiring on a pension, he was raised to the peerage as Viscount Eversley of Heckfield, in the county of Southampton. His appearances in the House of Lords were very infrequent, but in his own county he was active in the public service. From 1859 he was an ecclesiastical commissioner, and he was also appointed a trustee of the British Museum. He died on the 28th of December 1888, the viscountcy becoming extinct.

His younger brother, Sir John George Shaw Lefevre (1797-1879), who was senior wrangler at Cambridge in 1818, had a long and distinguished career as a public official. He was under-secretary for the colonies, and had much to do with the introduction of the new poor law in 1834, and with the foundation of the colony of South Australia; then having served on several important commissions he was made clerk of the parliaments in 1855, and in the same year became one of the first civil service commissioners. He helped to found the university of London, of which he was vice-chancellor for twenty years, and also the Athenaeum Club. He died on the 20th of August 1879.

The latter’s son, George John Shaw Lefevre (b. 1832), was created Baron Eversley in 1906, in recognition of long and prominent services to the Liberal party. He had filled the following offices:—civil lord of the admiralty, 1856; secretary to the board of trade, 1869-1871; under-secretary, home office, 1871; secretary to the admiralty, 1871-1874; first commissioner of works, 1881-1883; postmaster-general, 1883-1884; first commissioner of works, 1892-1893; president of local government board, 1894-1895; chairman of royal commission on agriculture, 1893-1896.

EVESHAM, a market-town and municipal borough in the Evesham parliamentary division of Worcestershire, England, 107 m. W.N.W. of London by the Great Western railway, and 15 m. S.E. by E. of Worcester, with a station on the Redditch-Ashchurch branch of the Midland railway. Pop. (1901) 7101. It lies on the right (north) bank of the Avon, in the rich and beautiful Vale of Evesham. The district is devoted to market-gardening and orchards, and the trade of the town is mainly agricultural. Evesham is a place of considerable antiquity, a Benedictine house having been founded here by St Egwin in the 8th century. It became a wealthy abbey, but was almost wholly destroyed at the Dissolution. The churchyard, however, is entered by a Norman gateway, and there survives also a magnificent isolated bell-tower dating from 1533, of the best ornate Perpendicular workmanship. The abbey walls surround the churchyard, but almost the only other remnant is a single Decorated arch. Close to the bell-tower, however, are the two parish churches of St Lawrence and of All Saints, the former of the 16th century, the latter containing Early English work, and the ornate chapel of Abbot Lichfield, who erected the bell-tower. Other buildings include an Elizabethan town hall, the grammar school, founded by Abbot Lichfield, and the picturesque almonry. The borough includes the parish of Bengeworth St Peter, on the left bank of the river. Evesham is governed by a mayor, 4 aldermen and 12 councillors. Area, 2265 acres.

Evesham (Homme, Ethomme) grew up around the Benedictine abbey, and had evidently become of some importance as a trading centre in 1055, when Edward the Confessor gave it a market and the privileges of a commercial town. It is uncertain when the town first became a borough, but the Domesday statement that the men paid 20s. may indicate the existence of a more or less organized body of tradesmen. Before 1482 the burgesses were holding the town at a fee farm rent of twenty marks, but the abbot still had practical control of the town, and his steward presided over the court at which the bailiffs were chosen. After the Dissolution the manor with the markets and fairs and other privileges was granted to Sir Philip Hoby, who increased his power over the town by persuading the burgesses to agree that, after they had nominated six candidates for the office of bailiff, the steward of the court instructed by him should indicate the two to be chosen. This privilege was contested by Queen Elizabeth, but when the case was taken before the court of the exchequer it was decided in favour of Sir Philip’s heir, Sir Edward Hoby. In 1604 James I. granted the burgesses their first charter, but in the following year, by a second charter, he incorporated Evesham with the village of Bengeworth, and granted that the borough should be governed by a mayor and seven aldermen, to whom he gave the power of holding markets and fairs and several other privileges which had formerly belonged to the lord of the manor. Evesham received two later charters, but in 1688 that of 1605 was restored and still remains the governing charter of the borough. Evesham returned two members to parliament in 1295 and again in 1337, after which date the privilege lapsed until 1604. Its two members were reduced to one by the act of 1867, and the borough was disfranchised in 1885.

Evesham gave its name to the famous battle, fought on the 4th of August 1265, between the forces of Simon de Montfort, earl of Leicester, and the royalist army under Prince Edward. After a masterly campaign, in which the prince had succeeded in defeating Leicester in the valleys of the Severn and Usk, and had destroyed the forces of the younger Montfort at Kenilworth before he could effect a junction with the main body, the royalist forces approached Evesham in the morning of the 4th of August in time to intercept Leicester’s march towards Kenilworth. Caught in the bend of the river Avon by the converging columns, and surrounded on all sides, the old earl attempted to cut his way out of the town to the northward. At first the fury of his assault forced back the superior numbers of the prince; but Simon’s Welsh levies melted away and his enemies closed the last avenue of escape. The final struggle took place on Green Hill, a little to the north-west of the town, where the devoted friends of de Montfort formed a ring round their leader, and died with him. The spot is marked with an obelisk.

EVIDENCE (Lat. evidentia, evideri, to appear clearly), a term which may be defined briefly as denoting the facts presented to the mind of a person for the purpose of enabling him to decide a disputed question. Evidence in the widest sense includes all such facts, and reference may be made to the article Logic for the science or art of dealing with the proper way of drawing correct conclusions and the nature of proof. In a narrower sense, however, evidence includes in English law only such facts as are allowed to be so presented in the course of judicial proceedings. Thus we say that a fact is not evidence, meaning thereby that it is not admissible as evidence in accordance with the rules of English law. The law of legal evidence is part of the law of procedure. It determines the kinds of evidence which may be produced in judicial proceedings, and regulates the mode in which, and the conditions under which, evidence may be produced and tested.

The English law of evidence is of comparatively modern growth. It enshrines certain maxims, some derived from Roman law, some invented by Coke, who, as J.B. Thayer says, “spawned Latin maxims freely.” But for the most History. part it was built up by English judges in the course of the 18th century, and consists of this judge-made law, as modified by statutory enactments of the 19th century. Early Teutonic procedure knew nothing of evidence in the modern sense, just as it knew nothing of trials in the modern sense. What it knew was “proofs.” There were two modes of proof, ordeals and oaths. Both were appeals to the supernatural. The judicial combat was a bilateral ordeal. Proof followed, instead of preceding, judgment. A judgment of the court, called by German writers the Beweisurteil, and by M.M. Bigelow the “medial judgment,” awarded that one of the two litigants must prove his case, by his body in battle, or by a one-sided ordeal, or by an oath with oath-helpers, or by the oaths of witnesses. The court had no desire to hear or weigh conflicting testimony. To do so would have been to exercise critical faculties, which the court did not possess, and the exercise of which would have been foreign to the whole spirit of the age. The litigant upon whom the burden of furnishing proof was imposed had a certain task to perform. If he performed it, he won; if he failed, he lost. The number of oath-helpers varied in different cases, and was determined by the law or by the court. They were probably, at the outset, kinsmen, who would have had to take up the blood-feud. At a later stage they became witnesses to character. In the cases, comparatively rare, where the oaths of witnesses were admitted as proof, their oaths differed materially from the sworn testimony of modern courts. As a rule no one could testify to a fact unless, when the fact happened, he was solemnly “taken to witness.” Then, when the witness was adduced, he came merely to swear to a set formula. He did not make a promissory oath to answer questions truly. He merely made an assertory oath in a prescribed form.

In the course of the 12th and 13th centuries the old formal accusatory procedure began to break down, and to be superseded by another form of procedure known as inquisitio, inquest, or enquête. Its decay was hastened by the decree of the fourth Lateran Council in 1215, which forbade ecclesiastics to take part in ordeals. The Norman administrative system introduced into England by the Conquest was familiar with a method of ascertaining and determining facts by means of a verdict, return or finding made on oath by a body of men drawn from the locality. The system may be traced to Carolingian, and even earlier, sources. Henry II., by instituting the grand assize and the four petty assizes, placed at the disposal of litigants in certain actions the opportunity of giving proof by the verdict of a sworn inquest of neighbours, proof “by the country.” The system was gradually extended to other cases, criminal as well as civil. The verdict given was that of persons having a general, but not necessarily a particular, acquaintance with the persons, places and facts to which the inquiry related. It was, in fact, a finding by local popular opinion. Had the finding of such an inquest been treated as final and conclusive in criminal cases, English criminal procedure might, like the continental inquisition, the French enquête, have taken the path which, in the forcible language of Fortescue (De laudibus, &c. ) “leads to hell” (semita ipsa est ad gehennam). Fortunately English criminal procedure took a different course. The spirit of the old accusatory procedure was applied to the new procedure by inquest. In serious cases the words of the jurors, the accusing jurors, were treated not as testimony, but as accusation, the new indictment was treated as corresponding to the old appeal, and the preliminary finding by the accusing jury had to be supplemented by the verdict of another jury. In course of time the second jury were required to base their findings not on their own knowledge, but on evidence submitted to them. Thus the modern system of inquiry by grand jury and trial by petty jury was gradually developed.

A few words may here be said about the parallel development of criminal procedure on the continent of Europe. The tendency in the 12th and 13th centuries to abolish the old formal methods of procedure, and to give the new procedure the name of inquisition or inquest, was not peculiar to England. Elsewhere the old procedure was breaking down at the same time, and for similar reasons. It was the great pope Innocent III., the pope of the fourth Lateran Council, who introduced the new inquisitorial procedure into the canon law. The procedure was applied to cases of heresy, and, as so applied, especially by the Dominicans, speedily assumed the features which made it infamous. “Every safeguard of innocence was abolished or disregarded; torture was freely used. Everything seems to have been done to secure a conviction.” Yet, in spite of its monstrous defects, the inquisitorial procedure of the ecclesiastical courts, secret in its methods, unfair to the accused, having torture as an integral element, gradually forced its way into the temporal courts, and may almost be said to have been adopted by the common law of western Europe. In connexion with this inquisitorial procedure continental jurists elaborated a theory of evidence, or judicial proofs, which formed the subject of an extensive literature. Under the rules thus evolved full proof (plena probatio) was essential for conviction, in the absence of confession, and the standard of full proof was fixed so high that it was in most cases unattainable. It therefore became material to obtain confession by some means or other. The most effective means was torture, and thus torture became an essential feature in criminal procedure. The rules of evidence attempted to graduate the weight to be attached to different kinds of testimony and almost to estimate that weight in numerical terms. “Le parlement de Toulouse,” said Voltaire, “a un usage très singulier dans les preuves par témoins. On admet ailleurs des demi-preuves, ... mais à Toulouse on admet des quarts et des huitièmes de preuves.” Modern continental procedure, as embodied in the most recent codes, has removed the worst features of inquisitorial procedure, and has shaken itself free from the trammels imposed by the old theory and technical rules of proof. But in this, as in other branches of law, France seems to have paid the penalty for having been first in the field with codification by lagging behind in material reforms. The French Code of Criminal Procedure was largely based on Colbert’s Ordonnance of 1670, and though embodying some reforms, and since amended on certain points, still retains some of the features of the unreformed procedure which was condemned in the 18th century by Voltaire and the philosophes. Military procedure is in the rear of civil procedure, and the trial of Captain Dreyfus at Rennes in 1899 presented some interesting archaisms. Among these were the weight attached to the rank and position of witnesses as compared with the intrinsic character of their evidence, and the extraordinary importance attributed to confession even when made under suspicious circumstances and supported by flimsy evidence.

The history of criminal procedure in England has been traced by Sir James Stephen. The modern rules and practice as to evidence and witnesses in the common law courts, both in civil and in criminal cases, appear to have taken shape in the course of the 18th century. The first systematic treatise on the English law of evidence appears to have been written by Chief Baron Gilbert, who died in 1726, but whose Law of Evidence was not published until 1761. In writing it he is said to have been much influenced by Locke.1 It is highly praised by Blackstone as “a work which it is impossible to abstract or abridge without losing some beauty and destroying the charm of the whole”; but Bentham, who rarely agrees with Blackstone, speaks of it as running throughout “in the same strain of anility, garrulity, narrow-mindedness, absurdity, perpetual misrepresentation and indefatigable self-contradiction.” In any case it remained the standard authority on the law of evidence throughout the remainder of the 18th century. Bentham wrote his Rationale of Judicial Evidence, specially applied to English Practice, at various times between the years 1802 and 1812. By this time he had lost the nervous and simple style of his youth, and required an editor to make him readable. His great interpreter, Dumont, condensed his views on evidence into the Traité des preuves judiciaires, which was published in 1823. The manuscript of the Rationale was edited for English reading, and to a great extent rewritten, by J.S. Mill, and was published in five volumes in 1827. The book had a great effect both in England and on the continent. The English version, though crabbed and artificial in style, and unmeasured in its invective, is a storehouse of comments and criticisms on the principles of evidence and the practice of the courts, which are always shrewd and often profound. Bentham examined the practice of the courts by the light of practical utility. Starting from the principle that the object of judicial evidence is the discovery of truth, he condemned the rules which excluded some of the best sources of evidence. The most characteristic feature of the common-law rules of evidence was, as Bentham pointed out, and, indeed, still is, their exclusionary character. They excluded and prohibited the use of certain kinds of evidence which would be used in ordinary inquiries. In particular, they disqualified certain classes of witnesses on the ground of interest in the subject-matter of the inquiry, instead of treating the interest of the witness as a matter affecting his credibility. It was against this confusion between competency and credibility that Bentham directed his principal attack. He also attacked the system of paper evidence, evidence by means of affidavits instead of by oral testimony in court, which prevailed in the court of chancery, and in ecclesiastical courts. Subsequent legislation has endorsed his criticisms. The Judicature Acts have reduced the use of affidavits in chancery proceedings within reasonable limits. A series of acts of parliament have removed, step by step, almost all the disqualifications which formerly made certain witnesses incompetent to testify.

Before Bentham’s work appeared, an act of 1814 had removed the incompetency of ratepayers as witnesses in certain cases relating to parishes. The Civil Procedure Act 1833 enacted that a witness should not be objected to as incompetent, solely on the ground that the verdict or judgment would be admissible in evidence for or against him. An act of 1840 removed some doubts as to the competency of ratepayers to give evidence in matters relating to their parish. The Evidence Act 1843 enacted broadly that witnesses should not be excluded from giving evidence by reason of incapacity from crime or interest. The Evidence Act 1851 made parties to legal proceedings admissible witnesses subject 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.”

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 Literature. 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.

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 Rules. 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.

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.